Register For Our Mailing List

Register to receive our free weekly newsletter including editorials.

Home / 81

Does your will treat your super fairly?

It is a common strategy to arrange your life insurance through your super fund. The fund can often buy insurance at wholesale rates, and by using salary sacrifice, you can effectively pay the premiums from pre-tax dollars.

Tax on superannuation paid to a non-dependant

But tax may be payable on the proceeds of the policy if it is left to a non-dependant. Often a young single person has, say, $300,000 of death cover through their work super fund. They are unlikely to have dependants for tax purposes, so if they were killed in a car accident the Tax Office would take around $100,000, leaving around $200,000 in their estate.

Where tax is payable by an estate, the tax becomes a general liability of the estate. As a result things can get much more complicated if the deceased is older and the estate does not have the money to pay the tax.

Think about a single father aged 50 with three adult children who all work, and one of them lives at home with him. His house was worth $380,000 in 2008 when his will was drafted. He has $300,000 in super Fund A, and just $15,000 in super Fund B. There is also a $300,000 insurance policy in Fund B – this fund is paying the premiums because it has the smallest balance.

He wanted his will to treat his children equally. Therefore, it was drafted to give the first child the proceeds of Fund A, the second child the proceeds of Fund B and the residue of his estate to child three who was living at home. The father figured that would be the house and the contents and each child would receive roughly the same amount.

Unfortunately, the will drafter did not understand the effect of the death tax on insurance policies held in superannuation.

When the father died suddenly, the children got a terrible shock when they discovered they were not going to be treated equally at all. Ordinarily it would be thought that the first child would receive around $255,000 as the proceeds from Fund A would be taxed at 15%, while the proceeds of the insurance policy held by Fund B would yield approximately $215,000 after the tax of approximately $100,000 was deducted. Life insurance proceeds held within superannuation suffer a much higher tax than ordinary superannuation benefits because they are treated as ‘untaxed’ and are subject to 30% tax (excluding Medicare levy) when paid to a non-dependant.

Problem 1: Super funds do not deduct the death tax and send the balance to the estate. Rather, they send the entire amount to the estate - it is the estate which has the obligation to send the death tax to the ATO.

Problem 2: Because the will specifically gave "the proceeds of Fund A" to the first child and “the proceeds of Fund B” to the second child, they would be entitled to the whole of $300,000 and $315,000 respectively. The tax still has to be paid, but it won’t be coming out of the proceeds received from either of Fund A or Fund B. The executor of the estate has a responsibility of paying $145,000 to the Tax Office ($45,000 death tax on Fund A and $100,000 death tax on Fund B).

Estate left to pay the tax

Because children one and two have received specific bequests, the tax can only be paid out of the residue of the estate. Using a concept known as ‘marshalling’, the executor will probably have to sell the home to pay the $145,000 tax bill leaving child three with net benefits of only $105,000. Not only has the third child borne the cost of the tax payable on both of the superannuation payouts, but the family home has been sold to pay the tax bill.

It is critical that anyone drafting a will understands that all assets are not treated equally for tax purposes. The difference between CGT-free assets like the family home, and investment properties that carry a CGT liability, are generally well known. But few understand the tax treatment of insurance policies held within superannuation, let alone the different tax treatment of the various components arising from contributions made to superannuation funds. As the above example shows, failure to take this tax into account can have disastrous and unforeseen consequences.

 

Noel Whittaker is the author of Making Money Made Simple and numerous other books on personal finance. His advice is general in nature and readers should seek their own professional advice before making any financial decisions. His website is www.noelwhittaker.com.au.

 

  •   26 September 2014
  •      
  •   

 

Leave a Comment:

RELATED ARTICLES

How the typical Australian Family could save $844,350 in taxes

Wealth transfer isn't just about 'saving it up and passing it on'

Most estate planning for tax is inadequate

banner

Most viewed in recent weeks

It’s time for LICs to die

A high-profile dividend cut and a prominent fund manager’s apology have reignited a long-running debate. If investors can access similar exposures more cheaply and efficiently elsewhere, what exactly is keeping LICs alive?

The retirement scorecard: how many of these questions can you answer?

From the maths of retirement, estimating spending and picking the right asset allocation to survive a poor decade, here are the questions every retiree – current or future – should be able to answer for themselves.

Testamentary trusts: Treasury has picked the wrong reading

A decades-old estate planning tool has survived one tax crackdown only to be caught by another. The surprise isn't who the reform is targeting, but who could end up paying the price for drafting choices made years ago.

How the typical Australian Family could save $844,350 in taxes

The value of a testamentary trust is not determined by wealth alone. Depending on circumstances, it can reduce the tax burden on inherited income, create efficiencies and help build intergenerational wealth.

The housing slide could become a crash

House prices are sliding across Australia, yet the most dangerous ingredient for a housing crash is still missing. If job losses surge amid growing economic risks, today's correction could become a historic property downturn.

Will investors be better or worse off under new housing tax changes?

Housing tax reforms have sparked warnings of market turmoil and promises of greater fairness. But after modelling nearly two decades of property data, the results suggest winners and losers may not be who many investors expect.

Latest Updates

SMSF strategies

Division 296: the initial moves to make before the windows close

What if the best superannuation strategy isn't about earning more, but acting before your options disappear? Several overlooked planning windows are narrowing, with consequences that can last for decades.

Planning

Avoid unnecessary CGT with this estate planning clause

A simple estate plan can create a ticking time bomb. One overlooked clause can pit spouses against children, delay inheritances, and potentially leave a family facing an unexpected tax bill worth hundreds of thousands of dollars.

Exchange traded products

The hidden trade-off in fixed income ETFs

Some investment trade-offs are immediately visible. Others are embedded in the way a portfolio is constructed. Understanding the difference may explain why similar-looking investments can produce surprisingly different results.

Retirement

The mortgage free retirement is fading

What happens when a generation reaches retirement carrying obligations previous generations largely avoided? New research suggests we may need to rethink both how much we need in retirement and what life could look like.

Retirement

The key question to inspire a confident and purposeful retirement

Most people spend decades planning for retirement. Far fewer plan for what happens when they get there. The difference may explain why so many find the transition harder and less fulfilling than expected, despite careful preparation.

Latest from Morningstar

Making the case for a 'good enough' portfolio

Some investors spend years chasing the perfect strategy. Others choose a path that’s simply good enough and move on. Which approach is more likely to deliver both better outcomes and a happier financial life over the long run?

Investment strategies

Is the US market as expensive as CAPE says?

Many investing ideas survive for decades. But that does not make them right. A famous valuation measure implies that US shares are dangerously expensive, but the evidence may point to a very different conclusion.

Sponsors

Alliances

  • ASA-Logo-RGB-ActiveGreen-web.png

© 2026 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.