Probate or Letters of Administration may be required by a super fund in circumstances where the member left no valid binding beneficiary nomination. In such cases, the fund may require you to produce the Supreme Court Grant of Probate or Letters of Administration before releasing the super funds to the appointed legal personal representative.

It is best to speak directly with the super fund to determine whether or not probate will be required to release the fund balance and any insurance payable. Superannuation funds will often require you to fill out certain paperwork in order to reach a determination regarding the payout.

The ATO (Australian Taxation Office) maintains a record of Superannuation accounts in Australia. Unfortunately the ATO is unlikely to provide this information to you if you have not yet obtained Probate or Letters of Administration. This can be a catch-22 situation if the superannuation is the only estate asset (because its value must be disclosed in the application).

If you would like to find out which funds your loved one held accounts with, and the value of these accounts, please get in touch with us.

If your loved one passed away, without leaving a will, but left either a super balance or a life insurance policy, the fund may require you to produce Letters of Administration before release of the death benefit funds to you. Whether or not you will be required to provide Letters of Administration to the fund will be determined by several factors including the applicable legislation, the fund’s trust deed and whether or not the deceased fund member left a valid binding beneficiary nomination.

Whilst you can sign a will which bequests the superannuation death benefit to a particular beneficiary, it is important to give equal (or even greater) importance to the following documents and texts: the binding beneficiary nomination form (which is usually executed in a similar way to a will, and often needs to be renewed every 3 years), the fund’s Trust Deed, any other documents governing the fund and of course the Superannuation Industry (Supervision) Act 1993.

Ensuring that your superannuation proceeds end up in the hands of your preferred beneficiary is not as straightforward as simply making a will. Call our specialist wills and estates solicitors to ensure that your super ends up in the right hands:

Read more about our Will drafting services here.

Super funds usually offer two main ways of nominating beneficiaries for your superannuation proceeds. These are:

• Non-binding nominations

  Non-binding nominations are a form of nomination where the Trustee of your super fund will give consideration to your wishes when distributing your death benefit, but the final decision rests with them. Such nominations may be appropriate in circumstances where you control a self-managed super fund, with your partner as a Trustee of the fund and you are content for them to make the final distribution decision. As the name suggests, such nominations are not binding on your Trustee.

  Typically, you can make non-binding nominations quite quickly and easily by calling, emailing or writing to your super fund.

• Binding nominations

  In contrast to non-binding nominations, as long as you make a valid binding nomination, the Trustee of your super fund is legally bound to pay the proceeds of your death benefit to your nominated beneficiary.

  Each super fund will have their own forms and processes for registering your binding nomination, which typically include such documents to be executed and witnessed in a similar way to your last will. Unlike your will however, these nominations generally need to be renewed every three years.

“Death benefits” collectively refers to your superannuation balance and any associated insurance that is payable on your death by your super fund.

On your death, death benefits are most often paid to your dependants, which may include any minor children or your spouse. Death benefits may also be paid to your “estate” and should then be distributed either in accordance with your will or the intestacy rules of your State or Territory.

As noted above, you do have some control over who is to receive your death benefit, and may make either a binding or a non-binding beneficiary nomination so that your preferences are taken into account by the Trustee of your super fund.

Yes, you may dispute a decision made by a superfund.

Whilst individual fund processes may vary, generally a fund will give you 28 days’ notice of their decision to award superannuation proceeds to a particular person/s. You may, within that time, contact the fund to object and to outline reasons for your objection. After the complaint is received the fund may either conduct a dispute resolution process to see whether a compromise may be reached with the other interested party/ies, or alternatively, may make a new decision based on your complaint and any further information provided from other parties.

Should you remain unsatisfied with the fund’s final determination, you will typically have 28 days to dispute the decision with the Australian Financial Complaints Authority (AFCA), who may review the matter anew to reach its own determination.

Finally, should you be left unsatisfied by an AFCA decision you may appeal it at the Federal Court of Australia.

Superannuation trustees are the people / entities which hold legal responsibility and control over a super fund’s assets on behalf of their members. They are responsible for making decisions on behalf of the trust, which includes determining who your death benefits will be paid out to. Trustees have a fiduciary obligation to act in the best interest of their members when making decisions regarding the super funds.

Funds may pay out death benefits to family members anywhere from several weeks to several months following the death of their member. To reduce any delays in processing your application, it is recommended that you fill out and mail back to the fund all forms and documentation provided by the fund. This will ensure that the fund is in a position to make a payout determination as soon as possible. It is possible for the fund to determine that you need to provide a Supreme Court Grant of Probate or Letters of Administration for the release of the funds, which will delay your access to the death benefits.