SUPERANNUATION
Superannuation
Your superannuation balances are your balances, but they are held in trust if they are held by an industry or retail fund. All superannuation funds incorporate the role of a trustee in their functioning, who bears responsibility for the balances in your account, including the distribution of your funds.
Trustee
Under Australian superannuation law, your superannuation balances do not automatically form part of your estate. But if for example that is what you intended, you must consider that the trustee of the superannuation fund is obligated to consider relevant information, including potential claimants, even if you did not intend the trustee to do so. This is in fulfilment of the trustee’s legal responsibilities under applicable legislation.
Nominations
One way to direct the trustee is to provide the trustee with a nomination. A nomination is an easily available direction, check with your fund, which provides the account holder the opportunity of informing the trustee of how your fund balances are to be distributed upon your death.
Nominations may be non-binding or binding, with the latter in particular, serving to direct the trustee of the superannuation fund to distribute your funds in the way you intend. In addition, nominations frequently carry a validity period of a few years, as determined by the trustee, unless non-lapsing nominations are offered by your fund.
Check with your fund as superannuation funds have different procedures and practices.
Insurance
Industry and retail funds offer life insurance as well as total permanent disability (‘TPD’) insurance as add-on services. Depending on the policy and coverage, this life insurance component may well be substantial in relation to the member fund balance.
Check with your superannuation fund, including nominations for insurance held.
Self Managed Superannuation Funds
A Self-Managed Superannuation Fund (‘SMSF’) is a fund you can set up yourself to invest your own funds, without having to leave your funds with third party managed industry or retail superannuation funds. According to ATO statistics as of 30 June 2022, there were over 603,000 SMSF’s in Australia holding $ 867.7 billion in assets but the average asset holding was only $ 1.5 million as at 30 June 2021.
An SMSF must also incorporate a role of trustee and comply with applicable superannuation legislation, in a similar way to any industry or retail fund. In turn, a trustee may be a corporate entity rather than an individual.
SMSF provide additional options in respect of asset acquisition and potential appreciation, as well as tax management and these opportunities are optimised when considered in terms of future planning and estate management.
Please contact us for any legal questions you may have.
