Register For Our Mailing List

Register to receive our free weekly newsletter including editorials.

Home / 468

Making death benefit nominations work for you

A recent High Court decision has confirmed that traditional binding death benefit nominations do not need to apply for SMSFs. In this article we will review the rules and practical application of death benefit nominations in both SMSFs and retail and industry funds.

Nomination types

Superannuation funds offer a range of death benefit nominations including:

  • Binding death benefit nominations
  • Non-lapsing binding death benefit nominations
  • Non-binding death benefit nominations
  • Member directed nominations in small funds

Binding nominations

A binding nomination can provide certainty as to who will receive the member’s death benefit. Under this type of nomination, members can nominate the person(s) to whom their death benefit will be paid. Superannuation law requires that the following conditions must be met:

  • The trustee must give the member sufficient information to understand the nature of a binding nomination
  • The nomination must nominate a superannuation law dependant
  • The nomination must be in writing
  • The nomination must be signed and dated in the presence of two witnesses
  • The witnesses must be over 18 and not a nominated dependant or legal personal representative
  • The nomination must be clear and unambiguous
  • If the nomination is not clear, the trustee must seek clarification as soon as practicable
  • The nomination expires after three years
  • The nomination may be amended or revoked

Non-lapsing binding nominations

Non-lapsing binding nominations have increased in use in retail funds in recent years. The nomination must be in writing but does not have to be witnessed and does not expire after three years.

These nominations require the trustee to actively consider and consent to the nomination. The trustee will generally consider whether the nomination is intended to be enduring and that the member does not intend for the nomination to ever expire. For example, if a spouse or the member’s estate is nominated, the trustee could reasonably conclude that the member intended for the nomination to never expire.

Non-binding nominations

A non-binding nomination is an expression of wishes which is not binding on trustees. The trustee will exercise discretion to determine the recipient of the death benefit but will take the nomination into account when exercising this discretion.

Where the death benefit is to be determined by trustee discretion, the trustee is required to undertake a claim staking process to identify potential beneficiaries and inform them of the trustee’s intentions as to how the death benefit will be distributed.

Potential beneficiaries include anyone who meets the superannuation law definition of dependant. The potential beneficiaries have 28 days to object to the trustee’s intention. If a potential beneficiary objects to the intended distribution, the trustee must obtain further information about the potential beneficiaries’ level of dependency, reassess their decision and recommence the claim staking process.

Except for SMSFs, if potential beneficiaries are dissatisfied with the trustee’s decision, they may lodge a formal complaint through the fund’s internal complaints process. They can also make a complaint to the Australian Financial Complaints Authority (AFCA).

SMSF member-directed nominations

SMSFs and small APRA funds (SAFs) are exempt from the provisions of superannuation law which prohibit a person who is not a trustee from exercising discretion as to who will receive the death benefit.

Members of SMSFs and SAFs can incorporate certainty in the nomination of beneficiaries using a clause in the fund’s trust deed. Such a clause would typically state that if a member nominates a valid dependant, the benefit shall be paid to them.

The High Court of Australia recently ruled in the case of Hill v Zuda Pty Ltd [2022] that the traditional three-year lapsing binding death benefit nominations do not need to apply to SMSFs. Whilst this view has been widely held, this is the first time that the courts have definitively clarified the matter, which has been welcomed.

SMSF trust deeds

In an SMSF, it is essential to review the fund’s trust deed to determine the rules regarding death benefit nominations. Although the High Court has ruled that traditional death benefit nominations do not apply to SMSFs, many trust deeds expressly include the traditional requirements. If this is the case, they must be complied with, and the nomination will lapse.

It is also important to review other SMSF trust deed requirements. It is common for trust deeds to provide an appendix or schedule that sets out the death benefit requirements, often in the form of a template. Any nomination that doesn’t meet the requirements would not be valid.

Many SMSF trust deeds also contain specific provisions regarding how the nomination must be given to the trustee and/or whether the trustee must accept a nomination prior to a member’s death.

No nomination

Where a member of any super fund has not made a nomination, the fund must have rules for determining the death benefit recipient(s).

Some funds will exercise discretion and follow the same process as if a member had a non-binding nomination.

However, many funds have automatic provisions that require the benefit to be paid to the legal personal representative. If a member does not have a will, their benefit would be distributed under the relevant state laws for dealing with intestacy. This is also particularly important for members who don’t have legal capacity to make a will but for whom the distribution of a death benefit under the laws of intestacy would result in unjust outcomes.

Case study – Pia

Pia was involved in an accident and no longer has mental capacity. He has not made an enduring power of attorney or a Will, nor has he completed a superannuation death benefit nomination.

He received a $1 million compensation payment that was paid to his super.

Following his injury, he lived with his father who is his full-time carer. His mother abandoned them both. Pia has never married and has no children. If Pia were to die and his superannuation benefit was paid to his estate, in most states, each of his parents would receive half of his super. If Pia was a member of a fund where the trustee was able to exercise discretion, it is likely that his father would qualify to receive all the benefit.

Invalid or partially invalid nomination

A death benefit nomination can never bind a trustee to make a payment to a person who does not meet the definition of a superannuation law dependant. In many instances, a person may have been an eligible dependant at the date of nomination but is not at the date of death.

In this respect it is important to understand what the fund rules are in respect of invalid nominations. Common options are for the benefit to be required to be paid to the legal personal representative or alternatively for the trustee to have discretion. Where multiple beneficiaries have been nominated but only one is invalid some fund rules state that the whole nomination is invalid whereas other fund rules will determine that only the portion of the non-dependant’s nomination is invalid.

Conclusion

Understanding the types of nominations offered by different funds can help members to ensure they are in a fund that offers death benefit nominations that suit their personal circumstances.

 

Julie Steed is Senior Technical Services Manager a Australian Executor Trustees. This article is in the nature of general information and does not consider the circumstances of any individual.

 


 

Leave a Comment:

RELATED ARTICLES

Limits to a will’s power over an SMSF

SMSFs the new battleground in family disputes

Meg on SMSFs: Why a trust deed is still important

banner

Most viewed in recent weeks

How much do you need to retire comfortably?

Two commonly asked questions are: 'How much do I need to retire' and 'How much can I afford to spend in retirement'? This is a guide to help you come up with your own numbers to suit your goals and needs.

Meg on SMSFs: Clearing up confusion on the $3 million super tax

There seems to be more confusion than clarity about the mechanics of how the new $3 million super tax is supposed to work. Here is an attempt to answer some of the questions from my previous work on the issue. 

The secrets of Australia’s Berkshire Hathaway

Washington H. Soul Pattinson is an ASX top 50 stock with one of the best investment track records this country has seen. Yet, most Australians haven’t heard of it, and the company seems to prefer it that way.

How long will you live?

We are often quoted life expectancy at birth but what matters most is how long we should live as we grow older. It is surprising how short this can be for people born last century, so make the most of it.

Australian housing is twice as expensive as the US

A new report suggests Australian housing is twice as expensive as that of the US and UK on a price-to-income basis. It also reveals that it’s cheaper to live in New York than most of our capital cities.

Welcome to Firstlinks Edition 566 with weekend update

Here are 10 rules for staying happy and sharp as we age, including socialise a lot, never retire, learn a demanding skill, practice gratitude, play video games (specific ones), and be sure to reminisce.

  • 27 June 2024

Latest Updates

Investment strategies

The iron law of building wealth

The best way to lose money in markets is to chase the latest stock fad. Conversely, the best way to build wealth is by pursuing a timeless investment strategy that won’t be swayed by short-term market gyrations.

Economy

A pullback in Australian consumer spending could last years

Australian consumers have held up remarkably well amid rising interest rates and inflation. Yet, there are increasing signs that this is turning, and the weakness in consumer spending may last years, not months.

Investment strategies

The 9 most important things I've learned about investing over 40 years

The nine lessons include there is always a cycle, the crowd gets it wrong at extremes, what you pay for an investment matters a lot, markets don’t learn, and you need to know yourself to be a good investor.

Shares

Tax-loss selling creates opportunities in these 3 ASX stocks

It's that time of year when investors sell underperforming stocks at a loss to offset capital gains from profitable investments. This tax-loss selling is creating opportunities in three quality ASX stocks.

Economy

The global baby bust

Across the globe, leaders are concerned about the fallout from declining birth rates and shrinking populations. Australia, though attractive to migrants, mirrors global birth rate declines, and faces its own challenges.

Economy

Hidden card fees and why cash should make a comeback

Australians are paying almost two billion dollars in credit and debit card fees each year and the RBA wil now probe the whole payment system. What changes are needed to ensure the system is fair and transparent?

Investment strategies

Investment bonds should be considered for retirement planning

Many Australians neglect key retirement planning tools. Investment bonds are increasingly valuable as they facilitate intergenerational wealth transfer and offer strategic tax advantages, thereby enhancing financial security.

Sponsors

Alliances

© 2024 Morningstar, Inc. All rights reserved.

Disclaimer
The data, research and opinions provided here are for information purposes; are not an offer to buy or sell a security; and are not warranted to be correct, complete or accurate. Morningstar, its affiliates, and third-party content providers are not responsible for any investment decisions, damages or losses resulting from, or related to, the data and analyses or their use. To the extent any content is general advice, it has been prepared for clients of Morningstar Australasia Pty Ltd (ABN: 95 090 665 544, AFSL: 240892), without reference to your financial objectives, situation or needs. For more information refer to our Financial Services Guide. You should consider the advice in light of these matters and if applicable, the relevant Product Disclosure Statement before making any decision to invest. Past performance does not necessarily indicate a financial product’s future performance. To obtain advice tailored to your situation, contact a professional financial adviser. Articles are current as at date of publication.
This website contains information and opinions provided by third parties. Inclusion of this information does not necessarily represent Morningstar’s positions, strategies or opinions and should not be considered an endorsement by Morningstar.