Estate planning has two primary goals. One is to protect yourself and your family in the event of unexpected illness or injury. The other is to ensure your loved ones are provided for after you die. Traditionally, having a valid will and naming beneficiaries through super fund providers have been key to achieving those objectives. However, experts now say that may not guarantee certain assets are allocated as per your wishes.
Keep reading to learn when binding and non-binding nominations in life insurance and superannuation funds may also be necessary.
What are binding nominations?
These are written instructions letting your superannuation fund trustee know who should receive your benefit when you die.
They play an important part in estate planning for two reasons. The first is that superannuation benefits are not legally classified as part of your overall estate. Therefore, your will, which ordinarily determines how the assets from your estate are allocated, does not apply to these benefits.
The second is that should there be a dispute among your family members after your death, the person or people you named as a beneficiary of your superannuation fund may be prevented from receiving the benefit, or it could be allocated to unintended recipients. By making a binding death benefit nomination, you eliminate the possibility of costly, unpleasant delays associated with any such dispute. This is because a trustee is legally obligated to follow your instructions.
You should also be aware that a valid binding death benefit nomination does not take effect until a super fund trustee receives and accepts it. It remains in effect for three years from the day it is initially signed, last changed or verified.
You can change or withdraw this type of nomination whenever you like. To change it, you must complete a new nomination form and submit it to the trustee. You must also notify the trustee in writing if you want to withdraw it. On a similar note, you must provide written notice to the trustee if you want to extend the nomination. This must be done before the expiry date.
It should also be noted that some funds that also accept non-lapsing binding nominations and so the nomination doesn’t need to be updated every three years. Often a characteristic of government super funds, the non-lapsing binding death nomination may only be made if permitted by the trust deed and with the active consent of the trustee.
A binding nomination is only valid if:
- It favours one or more of your dependants and/or your legal personal representative.
- Any dependant nominated must still be your dependant at the date of your death.
- The distribution of your benefits must be clearly specified.
- All of your benefits must be allocated. The entire nomination will be invalid otherwise.
- It is signed and dated by you before two (2) witnesses, both of whom are over the age of 18 years and not named as beneficiaries.
- It includes a declaration signed and dated by each witness indicating that you signed and dated the nomination in their presence.
What are non-binding nominations?
This type of nomination simply verifies how you would prefer to have your death benefit paid out.
While it must be taken into consideration, super fund trustees are not legally obligated to follow your instructions. Instead, they maintain full discretion as to distribution of applicable benefits, in accordance with the trust deed and superannuation law.
Unlike a binding nomination, a non-binding nomination remains in place indefinitely and only requires updating when your situation changes.
Who can you nominate?
If you are making a binding nomination, you may only name the following as beneficiaries:
- The executor of your will (for the purposes of distributing it according to your wishes);
- the administrator of your estate (for the same purpose);
- your husband or wife;
- your child (or your spouse’s child) of any age, including an adopted child, foster child, ward or child as classified in Family Law legislation;
- anyone living with you who met the criteria for an interdependent relationship at the date of your death; and
- any other person as determined to be financially dependent on you at the date of your death.
On the other hand, non-binding nominations can be made to:
- The executor of your will or administrator of your estate (for the purposes detailed above);
- anyone classified as your dependant in accordance with superannuation law.
In summary
No one wants to think about the inevitable. But the reality is, we will all die some day. By putting a comprehensive strategy in place now, we can ensure that our families are fully provided for when that day comes.
At Felicio Law Firm, our Central Coast estate planning lawyers are always available to help you craft a plan best suited to your situation. To learn if making binding or non-binding nominations for your superannuation or life insurance funds are viable options for you, contact us today on (02) 4365 4249.
