There are many steps and legal procedures involved in the process of claiming deceased superannuation in Australia. Superannuation is a retirement savings plan in Australia that provides financial security for individuals in their retirement years.
Importantly, it is a mandatory system, and employers need to contribute a percentage of their employees’ salaries to a superannuation fund. Individuals can also make voluntary contributions to their superannuation fund.
Read on to learn more about claiming deceased superannuation.
Key takeaways
- Superannuation is a retirement savings plan in Australia.
- If a person dies, the beneficiaries can claim their superannuation.
- The process of claiming deceased superannuation can be complex and time-consuming.
- Seeking legal advice can help beneficiaries navigate the process and ensure they receive their entitlements.
- Failing to seek legal advice can result in legal disputes and delays in receiving entitlements.
What Is a Will With a Super?
A Will with a super (testamentary trust Will) allows you to control the distribution of your superannuation death benefit after your death. With a testamentary trust Will, you can specify people who want to receive your superannuation. Additionally, you can also set out conditions for how the money can be used. There are several benefits to having a Will with a super, including:
1. You can control who receives your superannuation death benefit. If you do not have a Will, the family trustee of your superannuation fund will decide who to pay your death benefit to. This means that your superannuation death benefit may not be distributed under your wishes.
2. You can set out conditions about usage of your superannuation death benefit. For example, you could specify that parties must use your superannuation death benefit should to pay for your children’s education or to provide for a disabled family member.
3. You can protect your superannuation death benefit from creditors. If the deceased does not have a Will, his/her superannuation death benefit may be a part of the deceased estate and could be subject to claims from creditors. Furthermore, a testamentary trust will help to protect your superannuation death benefit from creditors claiming deceased superannuation.
Read: New Superannuation Disclosure Laws In Australia
What Happens to the Super of a Deceased Person?
When a person dies, their nominated beneficiary typically receives their superannuation. Moreover, this payment is “a super death benefit.” If the deceased person made a binding death benefit nomination, the trustee of the super fund must pay the death benefit to the nominated beneficiary or beneficiaries.
If there is no valid binding nomination, the trustee has the discretion to decide who to pay the death benefit to. Moreover, a dependant can receive the death benefit as a lump sum payment or an income stream, while a non-dependant must receive it as a lump sum benefit. To be legally binding, a superannuation nomination must:
- Specify eligible beneficiaries claiming deceased superannuation and their respective shares.
- Distribute 100% of the superannuation benefits among the nominated beneficiaries.
- Be a written document signed by the member and witnessed by two adult individuals (over 18 years old) who are not designated as beneficiaries.
- Have been made within the past three years or renewed within that timeframe.
When a person dies in Australia, their beneficiaries can claim their beneficiaries. The beneficiaries can include the deceased person’s:
- Spouse
- Former spouse
- Child under 18 years old
- Someone in an interdependency relationship with the deceased; or
- any other person who was financially dependent on the deceased.
What if a deceased person did not make a nomination, or has made a non-binding nomination? If this is the case, the trustee of the fund may use their discretion to decide which death benefit dependant or dependants will pay the deceased’s legal personal representative. Additionally, the representative is usually the deceased’s executor.
Claiming Deceased Superannuation: Tax Implications
The conditions for the existence of an interdependency relationship under tax law are generally the same as those applying under superannuation law. However, two people can have an interdependency relationship for taxes if they are close and have a disability that prevents them from meeting the usual requirements.
Steps in Claiming Deceased Superannuation
1. Contact the super fund: As an executor or next of kin, reach out to the deceased’s super fund to inquire about your eligibility for superannuation death benefits.
2. Provide initial information: The super fund will assign a case manager who will assess your eligibility and guide you through the process.
3. Complete required forms: If your claim is valid, you will receive forms to fill out and provide supporting documentation.
4. Application assessment: The trustee evaluates your application and may request additional information about the deceased member.
5. Decision and objection period: Lastly, a decision is made regarding the death benefit payment. Below is a table that shows how long a person can object to a superannuation decision.
| Superannuation decision | Objection period |
| Excess contributions | 4 years from the date the assessment was given to you. |
| Excess transfer balance cap tax assessment | 4 years from the date the assessment was given to you. |
| Excess transfer balance determination | 60 days from the date the determination was given to you. |
| Termination payments surcharge assessments | 60 days from the date the assessment was given to you. |
| Superannuation contributions surcharge assessment | 60 days from the date the assessment was given to you. |
| Super guarantee charge | 60 days from the date the assessment was given to you. |
| Administrative penalties | 60 days from the date you were notified of the decision. |
How Can Lawyers Help?
Family lawyers can help with claiming deceased superannuation death benefit by:
- Providing expert advice on the law and the process involved
- Gathering and submitting documentation
- Representing you in disputes and negotiations about the deceased’s superannuation fund
- Obtaining expert advice on tax implications
- Finally, providing peace of mind and emotional support
Legal Implications of Not Seeking Legal Advice
There are a number of legal implications that can arise if you do not seek legal advice when claiming a deceased person’s superannuation death benefit, including:
- You may make a mistake in the application process, which could result in a delay or rejection in your claim.
- You may not be aware of all of your legal rights, such as your right to challenge the trustee’s decision to pay the death benefit to someone else.
- Moreover, you may be a part of a dispute with superannuation funds, in which case a legal personal representative can be essential.
Our Expert Legal Advice for Your Family
We recognise the emotional toll that a loved one’s passing can have. Moreover, we provide individualised, caring support to make sure you receive understanding and compassion during this trying time. Our dedication to offering complete legal services goes beyond filing a claim.
We can also help with estate planning and tax consequences to make sure to properly handle your financial affairs. Lastly, our team at JB Solicitors can help with your deceased superannuation death benefit claim.
For a consultation, get in touch with us right now, and allow our knowledgeable family lawyers to help you navigate this crucial procedure.
