How often should I review my Will?
You should review your Will regularly. A review does not necessarily mean that a change is required, but does ensure that changes in circumstances are not overlooked.
We recommend that Wills be reviewed:
- If you separate, divorce or re-marry/re-partner
- If you have more children
- If you establish or dispose of a trust, company or business
- At least every three years
- Whenever you dispose of, or acquire significant assets, such as property
- If you acquire significant debts or there is a likelihood you may become insolvent
- Any major beneficiary dies or has a significant change in circumstances including a family law dispute
- An executor dies or becomes ill
Can I alter my Will?
Do not add to or delete from a Will after execution without seeking advice. Even simple changes must be made correctly or your wishes may be invalidated.
1. Family Law - Financial Agreements (Pre-nups)
If you enter into a new relationship you should consider entering into an agreement under the Family Law Act (Financial Agreement) to regulate the ownership of your respective assets in order to protect and preserve your assets for your benefit and the benefit of your children.
2. What is a Death Benefit Nomination (“DBN”)?
On the death of a member, the trustee of a superannuation fund will pay death benefits in accordance with the terms of the superannuation trust deed and its rules, not the deceased’s Will.
In some cases trustees have a discretion who they pay a death benefit to unless legislation or the governing rules provide otherwise.
Some funds allow a member to service a notice on the trustee nominating a person that the trustee
- May (Non-Binding Death Benefit Nomination), or
- Must (Binding Death Benefit Nomination )
pay a death benefit to, for example to their spouse or alternatively to their deceased estate.
Form of DBNs
The form of a DBN for a Public offer fund or Industry fund must be in strict compliance with the requirements of s 59 of the Superannuation Industry (Supervision) Act 1993 (“SIS Act”) and the Superannuation Industry (Supervision) Regulations 1994 Regulations (see Determination SMSFD 2008/3).
3. Death Benefit Nominations (DBN) and Self-Managed Superannuation Funds (SMSF)
Member of a SMSF may serve a DBN on their trustee.
- The nomination will be binding on the trustee even if the form of the DBN doesn’t comply with the Regulations
- Nevertheless, any binding death benefit nomination must strictly conform to the specific provisions set out the particular fund’s trust deed and governing rules
Must a SMSF Trustee comply with a DBN?
- A DBN is not binding on the trustee of a SMSF if it nominates a person who cannot receive a benefit under the SIS Act operating standards
- A member’s death benefits must be cashed in favour of the member’s legal personal representative and/or the member's "dependents", subject to certain exceptions.