SMSF & Binding Death Benefit Nominations

Your superannuation is likely to be one of your most valuable assets. However, you may not realise that it does not automatically become part of your estate on your death. Protect your legacy and your family with the creation of an appropriate Binding Death Benefit Nomination for your self-managed super fund (SMSF). Brien Leibinger Lawyers can help and are proud to be recommended by Accountants, Financial Planners and other Lawyers for these services.

What Is A Death Benefit Nomination?

A superannuation fund may permit a member to give a notice to the trustee of the superannuation fund requesting that the member’s benefit be paid at their death to either the member’s estate or to their dependants as specified in the notice.

The notice may be either a binding nomination or a non-binding nomination. A binding nomination is an instruction to the trustee by the member and the trustee must comply with it. A non-binding nomination, on the other hand, is merely an expression of the member’s wishes, and the trustee can exercise its discretion not to follow the nomination.

Only by making a binding nomination can you ensure that your intentions regarding your superannuation will be carried out. In the absence of a binding nomination, it is the trustee of a superannuation fund who decides how and to whom superannuation benefits are paid following a member’s death.

Plan Now For Peace of Mind.
A binding nomination gives you certainty that your superannuation death benefit will be dealt with in accordance with your wishes. If you have put in place an estate planning strategy to achieve particular outcomes, a binding nomination can ensure your superannuation death benefits are paid in accordance with that strategy.

What Is Required To Make The Nomination ‘Binding’?

In a public offer superannuation fund, a member’s death benefit nomination is binding if each of the following conditions is met:

  • The governing rules of the superannuation fund permit binding death benefit nominations;
  • Each death benefit nominee is a legal personal representative of the member’s estate or a dependant of the member;
  • The allocation of the death benefit between the nominees is clear;
  • The notice is in writing, and is signed and dated by the member in the presence of two witnesses aged over 18, neither of whom is a nominee;
  • The notice contains a declaration, signed and dated by the witnesses, stating that it was signed by the member in their presence;
  • No more than three years have passed since the notice was first signed, last confirmed or amended by the member.

A nomination made in this manner will also usually bind a trustee of a self-managed superannuation fund or a Small APRA Fund. However, these funds usually have the advantage that the governing rules of the fund may allow a member to bind the trustee to pay a death benefit in accordance with the fund’s rules without the requirement to renew the nomination every three years and have the nomination witnessed.

Keep It Current.
A binding nomination provided to the trustee of a public offer superannuation fund will generally lapse if it is not confirmed or renewed within three years of it being made, leaving the distribution of your superannuation benefits to the discretion of the trustee of your superannuation fund. So make sure you stay up to date and keep it current. We can help.

If you are concerned about how your superannuation benefits will be distributed, a properly made and executed binding death benefit nomination can give you peace of mind. Brien Leibinger Lawyers can help. Contact us today on (07) 4225 5420 or info@leibingerlawyers.com.au

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I cannot thank you enough for your wisdom and excellent advice during the process of reviewing, updating and redrafting the multiple documents within my Estate. The legal complexities of the various documents were clearly explained and I felt comfortable in requesting multiple changes to the drafts ensuring their integrity and that the outcomes in each of the documents was exactly what I wanted and could be easily understood in plain English rather than legal jargon.

Patsy Bjerregaard AM

Brien has attended to private family matters including the formulation of Wills for the family. I have found Brien Leibinger Lawyers very efficient, cost effective and diligent in the various assignments. Apart from the legal issues, I have found Brien to be a good friend and his advice from time to time has been very valuable. I would not hesitate to recommend Brien Leibinger Lawyers to anyone requiring a good lawyer in Cairns.

Sir Peter Barter. GCL, OBE, Kt - Melanesian Tourist Services Ltd

It was on the occasion of the death of my sister last year in August, I found that I was in need of a solicitor with more than average abilities. You were the person who was recommended to me by a friend in the legal profession, and my daughter-in-law who practices as a lawyer in the UK was able to meet you while in Cairns for the time of the funeral, and was in agreement for me to hire your services. Their confidence in you has more than proved itself as you guided me in the execution of my duties as the Executor Ruby’s Will and the handling of her Estate. When probate was given we were faced with the task of not only with the distributing of her personal bequest to family, but there were 16 beneficiaries to benefit with the residual of the Estate which amounted to about 4 million dollars. I can honestly say that with your professional equipping, there were no times when any real dramas eventuated where with you were not able to find the best advice which you gave, for which our family and I are truly grateful. Allow me to thank you once again, and to this my family wish me to add their appreciation. If I were asked to recommend you and your staff for your personal care, understanding, and professionalism, this I would do without hesitation.

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