Binding Death Nomination

Binding Death Benefit Nomination - Cost $75 Incl. GST

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What is Binding Death Benefit Nomination?

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A person’s superannuation is usually their largest asset with substantial value. Most people have incorrect notion that upon their death their superannuation will be dealt with by their will. But the distribution of their superannuation benefits is not governed by their will but decided by the trustee(s) of the superannuation fund.

Payment made from superannuation funds after death are called ‘death benefits’. When a member dies the SMSF may pay a death benefit and the trustee decides how the distributions would be made in terms of the superannuation trust deed and applicable legislation. However the member may choose to nominate one or more of his dependants and/or their legal representative who will receive that death benefit. But before the member does so, their superannuation fund should allow making such direction to the trustee(s). This legally enforceable direction is known as 'Binding death benefit nomination' (BDBN).

A binding death benefit nomination is a notice given by a super fund member to the trustee of their super fund requiring a death benefit to be paid to one or more dependent(s) and/or legal personal representative nominated by that member in the specified proportion. In the absence of a valid Binding death benefit nomination, the trustee(s) of the super fund will have discretion to determine the recipients of member’s death benefit.

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A deceased member’s death benefits can generally be paid only to:

their dependants. A person’s dependants include;

  • their spouse (including de facto),
  • their children (including adopted children, stepchildren, ex-nuptial children and children of the person’s spouse)
  • any other person with whom the member has an interdependency relationship at the time of death
  • Two persons have an interdependency relationship if:
    • they have a close personal relationship and;
    • they live together and
    • one or each of them provides the other with financial and domestic support and personal care;
  • any other person, who in the opinion of Trustee(s) was at the time of member’s death wholly or partially financially dependant on deceased member
  • their legal personal representative, meaning the executor of their will or administrator of their estate.

There is no limit to the number of dependents that may be nominated. The only restriction is that the various percentages applied to each dependent and, if nominated, the legal personal representative should add up to 100%. The most appropriate dependents to nominate will depend on the personal circumstances of the particular member. The taxation implications of the various dependents will be a relevant consideration in making this decision.

General Requirements for making a Binding Death Benefit Nomination

Before a Binding Death Benefit Notice is put in place, member must check if the funds deed allows this and it should comply with rules contained in their super fund deed and other legislative requirements.

Generally a Binding death Benefit Nomination should be:

  • In writing;
  • signed and dated by the member in the presence of two witnesses (who must be 18 years of age or over and must not be mentioned as beneficiaries in the notice);
  • contain a declaration signed and dated by the witnesses stating that the notice was signed and dated by the member in their presence;
  • be forwarded to the trustee of the relevant super fund

A binding death benefit nomination takes effect only after it has been received and accepted by the Trustee(s).

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Types of Binding Death Nomination

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A binding death nomination could either be lapsing in three years or a non lapsing one.

A Non-lapsing Binding Nomination is similar in legal effect to a will and can remain in effect till modified or revoked.

A lapsing Binding Nomination will last for three years unless it is revoked, modified or confirmed within that period. After that period, lapsing Binding Nomination will automatically expire and must be refreshed or confirmed to keep these in effect.

You will need to check the fund’s trust deed prior to making a selection. Deed will usually contain the provisions stating, whether the Binding Nomination can be made lapsing or non lapsing.

Besides complying with the provisions of Trust deed regarding the duration of Binding Death Nomination, few other things need to be kept in mind like;

With a lapsing BDBN, member can constantly monitor the nomination to ensure that the nomination states what they intend to do with their super benefits. Non lapsing BDBN can result into death benefits being paid, for example, to an estranged former spouse where the BDBN is not periodically reviewed.

Similarly with a lapsing BDBN, if it is not reviewed and renewed on its expiry ( usually three years), the trutee(s) of the fund would have a discretion on how the member’s benefits will be paid.

Thus this choice should be made carefully which is in compliance with the provisions contained in deed and after considering factors like above.

Amendment and Revocation of Binding Death Nomination

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A member can also amend their binding death benefit nomination at any time by completing a new binding death benefit nomination expressing the new intention of the member. A member can also revoke a binding death benefit nomination at any time by giving written notice to the trustee, signed and dated by the member in the presence of 2 witnesses who are at least 18.

If there is no Binding Death Nomination

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If no valid binding death benefit nomination is put in place, there are 2 options upon a member’s death:

  • No nomination – if no binding nomination is in effect at the date of member’s death the trustee(s) of the superannuation fund must deal with the deceased member’s benefits in the best interests of the member. That is, the trustee(s) will typically make enquiries about the deceased member’s family situation, inter-dependants, the provisions in the will, etc before making a decision and can pay benefit to one or more of member’s dependants and/or legal personal representative in proportions determined by the trustee.
  • Non-binding nomination – a non-binding nomination will provide guidance, but not direction, to the trustee. Trustee can still exercise its discretion while making the distribution but he can keep the non-binding nominations in mind while doing so.

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Some of the benefits of using our system are:

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No need to buy SMSF Loan agreement from Solicitors, you can create your loan agreement from specialists, instantly with us.

  • For advisors, clients can sign all necessary legal documents whilst they wait, instead of second appointments for executing documents.
  • Our fee is only $75 (Incl. GST)! By using our system you save time, energy and money for yourself and your clients.
  • You can manage all your legal documents on our smart document retrieval system. All documents are stored on our website for ever, secured by your user name and password, for future downloads.

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How It Works

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The process to enter the information for a Binding Death Nomination , takes less than 10 minutes.

  • After you register with us, you simply log on to your secured area (protected by your user name and password) on our website and log into "SMSF Tools" tab and select.
  • All questions come with clues to answers and explanations. At completion of all questions, confirm your answers and pay us by credit card (Master card or Visa) for instant delivery of the preliminary calculations or delivery after payment by EFT or by cheque.
  • We instantly email related documents and instructions sheet for your needs, any time of day and any day 24/7.
  • We store your documents (password protected) on our website for you to download from anywhere in the world 24/7 from our innovative document manager.

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