For many Australians, super is one of the biggest assets they own. So it comes as a surprise to learn that your will may have no say over where it goes.
So, does your will cover your super? Many people assume their super passes under their will along with everything else. Usually, it doesn’t. Your super fund pays it out according to your death benefit nomination, or the fund’s own rules if you haven’t made a valid one.
Here’s how it works, the different types of nomination, who you can choose, and how to make sure your will and your super point in the same direction.
Why your will doesn’t automatically cover your super
Your super isn’t held in your own name the way a bank account is. It’s held in trust by your fund’s trustee, and the trustee has to follow the law and the fund’s rules (its trust deed) when you die. As the ATO puts it for self-managed funds, the trust deed must be followed even if it’s different to a member’s will.
That’s why the money in your super account doesn’t automatically form part of your estate. Whether your will gets a say depends on your nomination:
- If you’ve made a valid binding nomination that’s still in force, the trustee pays the people you named.
- If you’ve made a non-binding nomination, or none at all, the trustee decides who receives it under the fund’s rules. That’s often a spouse, children or other dependants, or your estate.
Only super that’s paid to your estate is dealt with by your will. If you haven’t made a will yet, our guide to will kits vs a lawyer is a good place to start.
Binding, non-binding and non-lapsing nominations
Funds offer different types of nomination, and not every fund offers every type. Check your latest statement or member portal to see what you have.
Binding death benefit nomination
A binding nomination tells the trustee who must receive your super. If it’s valid and in force, the trustee has to follow it.
Super is governed by Commonwealth law, so the rules for a binding death benefit nomination are the same in Victoria as elsewhere in Australia. For most funds (other than self-managed funds), regulation 6.17A of the Superannuation Industry (Supervision) Regulations 1994 (Cth) says a binding nomination must be:
- in writing
- signed and dated by you in front of two witnesses who are both 18 or over and aren’t named in the nomination
- accompanied by a declaration, signed and dated by the witnesses, that they saw you sign
The people you nominate, and the share each receives, also have to be clear from the form.
Why some binding nominations expire
Under the same regulation, a standard binding nomination stops having effect 3 years after you first signed it, or last confirmed or changed it. Your fund’s rules can set a shorter period.
If you don’t renew it, it lapses. The trustee then decides who gets your super under the fund’s rules. It’s easy to lose track. Sign one in March 2023 and, unless your fund’s rules say otherwise, it lapses in March 2026. Check the date on yours.
Non-lapsing binding nomination
Some funds offer binding nominations that don’t expire. They stay in place until you change or revoke them. They’re convenient, but the flip side is that they’re easy to forget. A non-lapsing nomination made before a separation, a new relationship or the birth of a child can quietly send your super somewhere you no longer intend.
Non-binding nomination
A non-binding nomination tells the trustee what you’d like to happen, but the trustee doesn’t have to follow it. It’s a guide, not an instruction.
Some funds also let you choose a reversionary beneficiary if you’re receiving your super as an income stream (a pension). That person can keep receiving the income stream after you die.
Who can you nominate?
You can’t leave your super to just anyone through a nomination. Generally, you can nominate:
- your spouse or partner, including a de facto partner
- your children, of any age
- someone in an interdependency relationship with you
- anyone financially dependent on you
- your “legal personal representative”, which means the executor of your will (or the administrator of your estate if there’s no will)
A brother, sister, parent or friend usually can’t be nominated directly unless they fall into one of these groups. If you want them to benefit, you’ll generally need to nominate your legal personal representative and deal with it in your will.
Nominating your legal personal representative
If you nominate your legal personal representative, your super is paid into your estate. Your will then decides who receives it, alongside your other assets.
This can be a good option if you want:
- your super to follow your will, so everything is in one plan
- to leave super to people you couldn’t nominate directly
- to leave it in trust, for example for young children or a family member who needs support
There are trade-offs. Once super is in your estate, it’s dealt with like your other estate assets. That can include waiting for a grant of probate, and it may form part of any family provision claim against the estate. Whether paying super to your estate or directly to family is the better choice depends on your situation, which is exactly what we look at as part of our will drafting process.
Tax on super paid to adult children
This is a common surprise for families. For tax purposes, super death benefits paid to a “death benefits dependant” are tax-free when paid as a lump sum. But the tax definition of dependant is different from the super one, and it only covers children under 18. It includes:
- your spouse or former spouse, including a de facto partner
- your children under 18
- someone in an interdependency relationship with you
- anyone else financially dependent on you
An adult child who isn’t financially dependent on you is usually a non-dependant for tax purposes. As at October 2026, the ATO says the taxable component of a lump sum death benefit paid to a non-dependant is taxed at up to 15 per cent for the taxed element and up to 30 per cent for any untaxed element. When a fund pays a non-dependant directly, it withholds 17 per cent and 32 per cent, which includes the Medicare levy.
Here’s a hypothetical example. Say Anna, 67, leaves $400,000 of super to her two adult sons, who both work full time. If it’s all taxed element, the tax could be up to 15 per cent of $400,000, or $60,000, plus the Medicare levy if the fund pays them directly. That’s up to $30,000 each that the boys may not have expected to lose. Paying super through your estate doesn’t make that tax disappear either. The ATO applies the same rates based on who benefits in the end.
There may be ways to plan around this, and the right approach depends on your family and your fund. It’s worth raising with us, and with your accountant or financial adviser, before it becomes a problem.
Self-managed super funds (SMSFs)
If you have an SMSF, different considerations apply. SMSF death benefits are governed largely by the fund’s trust deed, so how nominations work, including whether they lapse, depends on what your deed says. SMSFs also raise questions about who controls the fund after you die.
If you have an SMSF, let us know when you start your will so we can review the trust deed and your nomination together.
Make sure your will and your super nomination match
A common problem isn’t choosing the wrong type of nomination. It’s having a nomination and a will that say different things, without realising it. A few examples we’d want to catch:
- your will leaves everything to your children equally, but your nomination leaves your super to one child
- your binding nomination lapsed years ago, so the trustee decides
- your nomination still names a former partner
That’s why our Will Checklist asks you to upload your latest super and insurance statements, including any beneficiary nominations. We’ll check that your nomination and your will work together, and tell you if anything needs updating.
Check your will and super line up
Upload your super statements with our online Will Checklist and we’ll check that your nomination and your will work together. Prefer to talk it through? Call us on (03) 9629 2211.
Common questions about super and your will
Does my will cover my super?
Not automatically. Super is held in trust by your fund and doesn’t automatically form part of your estate. It’s paid according to your death benefit nomination or the fund’s rules. Your will only deals with super that’s paid to your estate.
Can my will override a binding death benefit nomination?
No. If a binding nomination is valid and still in force, the trustee must pay your super to the people it names, whatever your will says. That’s why your will and your nomination need to match.
How long does a binding death benefit nomination last?
A standard binding nomination lasts 3 years from when you signed, last confirmed or changed it, or a shorter period if your fund’s rules say so. Some funds offer non-lapsing nominations that don’t expire. For SMSFs, it depends on the trust deed.
Can I nominate my brother or sister to receive my super?
Usually not directly, unless they’re financially dependent on you or in an interdependency relationship with you. You can nominate your legal personal representative instead, so your super goes to your estate, and then leave it to them in your will.
Do adult children pay tax on super they inherit?
Often, yes. An adult child who isn’t financially dependent on you is usually a non-dependant for tax purposes. As at October 2026, the taxable component is taxed at up to 15 per cent (taxed element) or 30 per cent (untaxed element), plus the Medicare levy when the fund pays them directly.
This is general information, not legal advice. Every situation is different, so get in touch about yours.
