10 October 2013 Estate planning and superannuation - How to have the last laugh

By Angela Harvey, Partner and Euge Power, Solicitor

In brief

Superannuation is a funny thing. It is yours, but you can't have it yet. It gets paid out when you die, but the money may not go to whom you would like. You are basically saving all your life for something you might never receive and you probably don't even know who is getting it when you die. Black humour? You will only be laughing if you have the right advice. Angela Harvey, partner, and Euge Power, solicitor, give some insight on how to have the last laugh when it comes to leaving your superannuation to the people who need it most.

Imagine this: You have tens of thousands, hundreds of thousands or even a million dollars or more, and you can't do what you want with it. You might hold in your hands the opportunity to make the lives of the ones you love much more comfortable. Arm yourself with the below information to make sure you leave your superannuation in the right hands:

1.   I thought: where there is a Will there is a way?

Although it would seem to make sense to most people, you cannot simply dispose of your superannuation by stating who it is to go to in your Will. Arranging who is to benefit from your superannuation can be a complex and ongoing issue if you do not have an expert working with you.

2.   Stiff as a board (Psst! I'm talking about the superannuation trustee...)

A trustee of a superannuation fund can be inflexible and rigid as they must abide by all the various pieces of legislation when it comes to who will receive the benefits after death of a member of a fund. The trustee has limited discretion to change to whom a death benefit is to be provided.

3.   Death and taxes: together at last (but not in the way we hoped)

Payments of death benefits from superannuation funds can have lots of different tax consequences, depending on:

  1. Is the benefit being paid to a dependant?
  2. Had the superannuation reached maturity? (i.e. has the member retired?)
  3. In which way must the benefit to be paid according to the legislation?
  4. Do any assets in the fund need to be sold or transferred to affect the payment?

All complicating factors in relation to how much tax is paid. An expert in this area can assist you to pay as little tax as possible depending on contingency plans for when and who payments are to be made.

4.   Domination of your nomination to remove expectation of deprivation

If your plan is to have your superannuation distributed direct from the trustee of the superannuation fund, there are ways in which you can nominate a particular person to receive the funds. A non-binding death benefit nomination gives some guidance to the trustee on who to give your hard earned.

A binding death benefit nomination does what it says. However, the paperwork must jump through a number of hoops to be effective, and even still, the nomination will only last for 3 years unless it is renewed.

5.   The complete last laugh package: payment into your estate

This takes the superannuation trustee out of the picture entirely. Payment to your estate means it is the words in your Will which will set out who gets what and when. Taxation issues can be worked out during your lifetime or during the administration, whichever is necessary and depending on how much power you give to your executor.
The problem with the serious, complex and the seriously complex things in life, like death and superannuation, is that people don’t want to talk about them, and will tend to leave them until it is too late. These issues are serious, and they are complex, but no one is saying you should do it on your own. Expert solicitors who have knowledge and experience can assist you with the seriousness, so you can get on with the fun in life. Do this and you can be assured you will have the last laugh knowing you have taken care of those who need it most. 

For further information, please contact:

Angela Harvey, Partner  |  Phone: +61 2 9233 5544  |  Email:

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This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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