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

2024/25 super thresholds – key changes and implications

The ATO has released all the superannuation rates and thresholds that will apply from 1 July 2024. Here's what’s changing and what’s not, and some key considerations and opportunities in the lead up to 30 June and beyond.

The greatest investor you’ve never heard of

Jim Simons has achieved breathtaking returns of 62% p.a. over 33 years, a track record like no other, yet he remains little known to the public. Here’s how he’s done it, and the lessons that can be applied to our own investing.

Five months on from cancer diagnosis

Life has radically shifted with my brain cancer, and I don’t know if it will ever be the same again. After decades of writing and a dozen years with Firstlinks, I still want to contribute, but exactly how and when I do that is unclear.

Is Australia ready for its population growth over the next decade?

Australia will have 3.7 million more people in a decade's time, though the growth won't be evenly distributed. Over 85s will see the fastest growth, while the number of younger people will barely rise. 

Welcome to Firstlinks Edition 552 with weekend update

Being rich is having a high-paying job and accumulating fancy houses and cars, while being wealthy is owning assets that provide passive income, as well as freedom and flexibility. Knowing the difference can reframe your life.

  • 21 March 2024

Why LICs may be close to bottoming

Investor disgust, consolidation, de-listings, price discounts, activist investors entering - it’s what typically happens at business cycle troughs, and it’s happening to LICs now. That may present a potential opportunity.

Latest Updates

Shares

20 US stocks to buy and hold forever

Recently, I compiled a list of ASX stocks that you could buy and hold forever. Here’s a follow-up list of US stocks that you could own indefinitely, including well-known names like Microsoft, as well as lesser-known gems.

The public servants demanding $3m super tax exemption

The $3 million super tax will capture retired, and soon to retire, public servants and politicians who are members of defined benefit superannuation schemes. Lobbying efforts for exemptions to the tax are intensifying.

Property

Baby Boomer housing needs

Baby boomers will account for a third of population growth between 2024 and 2029, making this generation the biggest age-related growth sector over this period. They will shape the housing market with their unique preferences.

SMSF strategies

Meg on SMSFs: When the first member of a couple dies

The surviving spouse has a lot to think about when a member of an SMSF dies. While it pays to understand the options quickly, often they’re best served by moving a little more slowly before making final decisions.

Shares

Small caps are compelling but not for the reasons you might think...

Your author prematurely advocated investing in small caps almost 12 months ago. Since then, the investment landscape has changed, and there are even more reasons to believe small caps are likely to outperform going forward.

Taxation

The mixed fortunes of tax reform in Australia, part 2

Since Federation, reforms to our tax system have proven difficult. Yet they're too important to leave in the too-hard basket, and here's a look at the key ingredients that make a tax reform exercise work, or not.

Investment strategies

8 ways that AI will impact how we invest

AI is affecting ever expanding fields of human activity, and the way we invest is no exception. Here's how investors, advisors and investment managers can better prepare to manage the opportunities and risks that come with AI.

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.