Drafting a superannuation binding death benefit nomination
Super does not form part of the estate unless paid to the LPR. A BDBN directs the trustee how to pay. Nominations must be to SIS dependants (spouse, child, interdependent, financial dependant) or the LPR, and must comply with fund deed and SIS Regulations.
This is an 8-step workflow for drafting a superannuation binding death benefit nomination (BDBN) under s 59 of the SIS Act that directs super to SIS dependants or the legal personal representative.
Before you start
- Details of super fund and current member statement
- Fund's trust deed (especially for SMSFs) and BDBN rules
- Information on dependants, spouse, and children
- Will and any testamentary trust being drafted
The workflow
Review the fund deed and rules
Check the fund deed (or PDS for retail funds) for BDBN provisions — whether binding, lapsing/non-lapsing, and execution requirements. SMSF deeds vary substantially.
Confirm eligible dependants
Under s 10A of the SIS Act, eligible recipients are spouse (including de facto and same-sex), child, interdependent, or financial dependant, plus the LPR. Others cannot be nominated.
Choose the distribution pathway
Decide between direct nomination to dependants (simple, tax-efficient for tax-dependants) or to the LPR (flows into the will/testamentary trust). Each has tax and control trade-offs.
Address tax considerations
Tax-dependent beneficiaries receive lump sum tax-free. Non-tax-dependent adult children pay up to 17% on taxable components. Structure to maximise tax-dependent share.
Draft the nomination
Draft in the form required by the fund deed. For SMSFs, follow the deed (usually two witnesses). For APRA funds, use the fund's prescribed form — deviation invalidates.
Consider non-lapsing where available
Non-lapsing BDBNs (SMSF and some retail) avoid the three-year expiry. Confirm the deed permits non-lapsing and draft accordingly to avoid inadvertent lapse.
Execute with witnesses
Execute the nomination with the required witnesses (typically two adults, not beneficiaries). Retain the original and lodge a copy with the trustee.
Diarise review and coordinate with will
Diarise review every three years (lapsing) or on life events. Confirm the nomination coordinates with the will and any testamentary trust, especially for LPR flows.
What you will have at the end
A valid binding nomination directing super to the intended beneficiaries on death, coordinated with the will and testamentary trust design.
Common issues
- Nominating a non-dependant (parent, sibling) which invalidates the nomination
- Form defects — wrong witnesses, unsigned, undated
- Lapsed three-year nominations that no longer bind the trustee
- SMSF deeds requiring specific wording that was not used
- Payment to LPR without the will being updated to reflect the super inflow
Run this workflow on a real matter
Quillio drafts BDBNs tailored to the fund deed, checks dependency status under s 10A, and coordinates with testamentary trust design. See /practice-areas/wills-estates-lawyers.
This workflow is a general guide. Superannuation death benefit planning interacts with tax, family law, and bankruptcy — work with the client's accountant and financial adviser.
Try this workflow with Quillio.
Quillio can run this workflow on a real matter, with citations to current AU authority on every step. The free trial requires no credit card.
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