Paying super death benefits [CPD Quiz]
12 March 2018
12 March 2018
Mindy Ding is Technical Consultant at AMP.
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More about FPA membershipA look at the issues of paying superannuation death benefits directly to beneficiaries and to the estate.
It is generally well understood that superannuation benefits do not automatically form part of an individual’s estate upon death, and that relevant superannuation regulations compel cashing of the member’s benefits as soon as practicable after death.
Upon death, a member’s benefit may generally only be paid directly from a super fund to a beneficiary who is a dependant under super law and/or their legal personal representative (LPR) (i.e. the executor of their estate).
Under the Superannuation Industry (Supervision) Act 1993, dependants eligible to receive a death benefit directly from super (SIS dependants) include:
An individual will need to nominate the executor of their estate (i.e. LPR) and make the necessary arrangements in their will if he/she:
Where the intended beneficiary is an SIS dependant, deciding whether the beneficiary/ies or the estate should be nominated should involve consideration of the following factors:
Super regulations govern the form in which a death benefit can be paid – that is, either lump sum and/or income stream.
However, only the following SIS dependants are eligible to receive a death benefit income stream:
Where the beneficiary is a child of the deceased, an income stream is only possible if the child is:
Further, the death benefit income stream must be cashed out by the time the child reaches age 25, unless the child has a disability.
Death benefit income streams can be attractive for a number of reasons, including:
Should an individual wish to preserve the opportunity for an eligible beneficiary to receive a death benefit income stream, the beneficiary must be nominated directly. Otherwise, if the payment is directed to the estate, the ability to commence a death benefit income stream is lost.
The introduction of the $1.6 million transfer balance cap (TBC) on 1 July 2017 adds a further consideration.
The TBC effectively limits the total amount of superannuation benefits that a person can transfer into a retirement phase income stream to benefit from tax-free earnings on the assets backing the income stream. Importantly though, the value of a death benefit income stream will also be counted towards the beneficiary’s TBC.
Therefore, consideration must be given to the beneficiary’s TBC when nominating them directly, as a less than desirable tax and asset protection outcome may result if the beneficiary is left with no choice but to cash out part or all of the death benefit due to the TBC limit.
While superannuation law sets out who a death benefit may be paid to, taxation law sets out how the benefits will be taxed.
Tax dependants
For tax purposes, a death benefit dependant (tax dependant) includes:
A lump sum super death benefit paid to a tax dependant, regardless of whether the payment is received directly from the fund or as a distribution from the estate, is tax-free. Any earnings (including capital gains) subsequently derived from the proceeds will be taxed at the beneficiary’s marginal tax rate.
Where death benefits are intended for multiple tax-dependant beneficiaries with varying personal marginal tax rates, it may be advantageous to direct the payment to the estate in order to provide capital to a testamentary trust. The income splitting ability of testamentary trusts can help to provide an overall tax saving for the deceased/beneficiary’s family.
Non-tax dependants
Beneficiaries who are non-tax dependants are subject to paying tax on super death benefits, to the extent that the payment contains taxable component.
However, a point of difference between a non-tax dependant beneficiary receiving the death benefit directly from the super fund (where eligible, such as an adult child) and as an estate distribution is that the Medicare levy of 2 per cent will not apply to a death benefit that is paid via the estate. Hence, in these circumstances, paying a lump sum death benefit via the estate can provide the beneficiary with a 2 per cent tax saving.
Further, the taxable component of a lump sum death benefit paid directly from a super fund to a non-tax dependant is included in the beneficiary’s assessable income for the financial year in which the payment is received. This can have indirect consequences on the beneficiary’s access to certain superannuation concessions (e.g. Government co-contribution), tax offsets (e.g. low income tax offset) and social security entitlements (e.g. Family Tax Benefit).
Another significant point of difference is that the rates of 15 per cent and 30 per cent applicable to the taxed and untaxed elements respectively are the maximum tax rates payable. If the deceased estate does not have a significant amount of other income in the financial year, then the actual tax rate applicable may be lower, particularly given that the deceased estate trustee has access to adult marginal tax rates, including the tax-free threshold.
A payment of a death benefit made directly to a beneficiary, in most cases, will be received sooner than if made via the estate. By bypassing the estate, the payment of the death benefit can avoid potential delays in the estate administration process.
While an individual can choose to gift their assets upon death to whomever he or she wishes, the law recognises that some individuals also have a moral obligation to provide for certain people. As such, certain classes of people can make a claim against the estate.
Importantly, it is only assets in the estate that may be brought to satisfy family provision claims (subject to notional estate provisions in NSW).
This means that in most states, where there is a risk of a claim arising, paying super death benefits to beneficiaries directly may minimise the value of the pool of estate assets, and thereby mitigate this risk to a certain extent.
Bankruptcy
Bankruptcy is a complex area of law and therefore it is vital that clients seek advice from a qualified professional. While a detailed discussion is outside the scope of this article, some relevant issues are considered below.
If an intended beneficiary is bankrupt or is in impending bankruptcy, careful consideration must be given to how super death benefits are directed to that beneficiary.
Generally speaking, lump sum super death benefits paid directly to a bankrupt beneficiary will be considered an interest from a superannuation fund, and accordingly will not be property that is divisible among creditors.
In contrast, super death benefits received by a bankrupt beneficiary via a distribution from an estate will generally not constitute an interest in a regulated superannuation fund. Instead, having passed through the estate, the payment is considered to have lost the connection to being a superannuation interest. Consequently, such a payment is not afforded the same protection.
Where bankruptcy of a beneficiary is a concern, ensuring that the intended beneficiary receives the lump sum death benefits directly (where eligible) by implementing the appropriate nomination, may provide asset protection advantages over directing the inheritance via the estate.
If a beneficiary is neither bankrupt nor facing imminent bankruptcy, but has the potential to become bankrupt in the future (e.g. due to being in a high-risk profession), it may be more appropriate to first direct super death benefits to the estate, and then to a testamentary trust.
Note: Should the beneficiary opt to receive the death benefits as an income stream, the degree of asset protection of superannuation would reduce, as pension payments are not fully exempt under bankruptcy laws.
Relationship breakdown
If structured appropriately, testamentary trusts can also provide a reasonable degree of asset protection in the event of a beneficiary’s marriage/de facto relationship breakdown.
Assets held within the trust, including any super death benefits, will generally not form part of the pool of assets of the beneficiary’s relationship, but is generally considered a financial resource. The degree of asset protection afforded will depend on numerous factors, including who the controllers and beneficiaries of the trust are, and how long the trust has been in place prior to the relationship breakdown.
If, on the other hand, the beneficiary had inherited the super death benefits directly, those assets may have a higher chance of being taken into account when making orders regarding the division of the couple’s property.
A concern of many clients is that if their minor children were to receive their assets upon their death, the child(ren) may not make the best financial decisions in regards to their inheritance. Similar concerns may arise when dealing with special needs beneficiaries, e.g. beneficiaries with mental disabilities or gambling, drug or alcohol dependency issues.
A testamentary trust can provide a control mechanism to alleviate this concern, as it allows clients to elect a specific age for the child(ren) to access the capital (e.g. age 30) and/or take control of the trust.
A nomination to the estate would need to be in place in respect of the super death benefits and the will updated to create a testamentary trust upon death to facilitate this.
Grandfathering of account based pensions
While a detailed discussion is outside the scope of this article, it may be advantageous from a social security perspective for an eligible beneficiary to receive a death benefit income stream as an automatic reversionary beneficiary.
Means testing for social security payments
For a beneficiary who is a recipient of a means tested social security entitlement (such as Age Pension), a lump sum inheritance received either directly from a super fund or via the estate will generally be exempt under the income test.
However, the continuing asset and income test treatment will be determined by how the beneficiary makes use of the proceeds. For example, where the beneficiary invests the funds in a share portfolio, the value will be assessed as an asset and deemed.
In comparison, the treatment may differ if the recipient is a beneficiary of a testamentary trust.
The assets and income at the trust level are ‘attributed’ to the surviving spouse of the deceased, where the spouse is a:
Non-spouse beneficiaries are generally assessed under the standard attribution rules. Broadly, if they are deemed to control the trust, the assets and income of the trust are ‘attributed’ to the beneficiary. Beneficiaries who are not deemed controllers will simply have the actual distribution from the trust assessed as income for 12 months from the date of the resolution to distribute.
For eligible beneficiaries with a severe disability, a special disability trust set up through the will with estate assets may be social security-friendly. Specifically, an assets test exemption of up to $657,250 (indexed) is available to the beneficiary in respect of trust assets, and income generated by the trust’s investments is also exempt from means testing.
Accordingly, correctly structuring a gift using a testamentary trust may represent an opportunity for the beneficiary to maximise their social security entitlement.
While there may be clear benefits of directing super death benefits to a testamentary trust via the estate, the costs must also be considered. Setting up, maintaining and managing a testamentary trust can be expensive. Further, costs to maintain the trust increase significantly where a professional trustee is involved.
When it comes to the payment of super death benefits, there is no ‘one size fits all’ solution. Analysis of a number of factors is required on a case-by-case basis to determine the optimal course of action.
To answer these questions for your 0.5 CPD hours, go to fpa.com.au/cpdmonthly
Paying super death benefits [CPD Quiz]12 March 2018 A look at the issues of paying superannuation death benefits directly to beneficiaries and to the estate. It is generally well understood that superannuation benefits do not automatically form part of an individual’s estate upon death, and that relevant superannuation regulations compel cashing of the member’s benefits as soon as practicable after death. Upon death, a member’s benefit may generally only be paid directly from a super fund to a beneficiary who is a dependant under super law and/or their legal personal representative (LPR) (i.e. the executor of their estate). Under the Superannuation Industry (Supervision) Act 1993, dependants eligible to receive a death benefit directly from super (SIS dependants) include:
An individual will need to nominate the executor of their estate (i.e. LPR) and make the necessary arrangements in their will if he/she:
Where the intended beneficiary is an SIS dependant, deciding whether the beneficiary/ies or the estate should be nominated should involve consideration of the following factors:
Form of paymentSuper regulations govern the form in which a death benefit can be paid – that is, either lump sum and/or income stream. However, only the following SIS dependants are eligible to receive a death benefit income stream:
Where the beneficiary is a child of the deceased, an income stream is only possible if the child is:
Further, the death benefit income stream must be cashed out by the time the child reaches age 25, unless the child has a disability. Death benefit income streams can be attractive for a number of reasons, including:
Should an individual wish to preserve the opportunity for an eligible beneficiary to receive a death benefit income stream, the beneficiary must be nominated directly. Otherwise, if the payment is directed to the estate, the ability to commence a death benefit income stream is lost. Pension transfer balance capThe introduction of the $1.6 million transfer balance cap (TBC) on 1 July 2017 adds a further consideration. The TBC effectively limits the total amount of superannuation benefits that a person can transfer into a retirement phase income stream to benefit from tax-free earnings on the assets backing the income stream. Importantly though, the value of a death benefit income stream will also be counted towards the beneficiary’s TBC. Therefore, consideration must be given to the beneficiary’s TBC when nominating them directly, as a less than desirable tax and asset protection outcome may result if the beneficiary is left with no choice but to cash out part or all of the death benefit due to the TBC limit. TaxationWhile superannuation law sets out who a death benefit may be paid to, taxation law sets out how the benefits will be taxed. Tax dependants For tax purposes, a death benefit dependant (tax dependant) includes:
A lump sum super death benefit paid to a tax dependant, regardless of whether the payment is received directly from the fund or as a distribution from the estate, is tax-free. Any earnings (including capital gains) subsequently derived from the proceeds will be taxed at the beneficiary’s marginal tax rate. Where death benefits are intended for multiple tax-dependant beneficiaries with varying personal marginal tax rates, it may be advantageous to direct the payment to the estate in order to provide capital to a testamentary trust. The income splitting ability of testamentary trusts can help to provide an overall tax saving for the deceased/beneficiary’s family. Non-tax dependants Beneficiaries who are non-tax dependants are subject to paying tax on super death benefits, to the extent that the payment contains taxable component. However, a point of difference between a non-tax dependant beneficiary receiving the death benefit directly from the super fund (where eligible, such as an adult child) and as an estate distribution is that the Medicare levy of 2 per cent will not apply to a death benefit that is paid via the estate. Hence, in these circumstances, paying a lump sum death benefit via the estate can provide the beneficiary with a 2 per cent tax saving. Further, the taxable component of a lump sum death benefit paid directly from a super fund to a non-tax dependant is included in the beneficiary’s assessable income for the financial year in which the payment is received. This can have indirect consequences on the beneficiary’s access to certain superannuation concessions (e.g. Government co-contribution), tax offsets (e.g. low income tax offset) and social security entitlements (e.g. Family Tax Benefit). Another significant point of difference is that the rates of 15 per cent and 30 per cent applicable to the taxed and untaxed elements respectively are the maximum tax rates payable. If the deceased estate does not have a significant amount of other income in the financial year, then the actual tax rate applicable may be lower, particularly given that the deceased estate trustee has access to adult marginal tax rates, including the tax-free threshold. Administrative efficiencyA payment of a death benefit made directly to a beneficiary, in most cases, will be received sooner than if made via the estate. By bypassing the estate, the payment of the death benefit can avoid potential delays in the estate administration process. Risk of challenges to the estateWhile an individual can choose to gift their assets upon death to whomever he or she wishes, the law recognises that some individuals also have a moral obligation to provide for certain people. As such, certain classes of people can make a claim against the estate. Importantly, it is only assets in the estate that may be brought to satisfy family provision claims (subject to notional estate provisions in NSW). This means that in most states, where there is a risk of a claim arising, paying super death benefits to beneficiaries directly may minimise the value of the pool of estate assets, and thereby mitigate this risk to a certain extent. Asset protectionBankruptcy Bankruptcy is a complex area of law and therefore it is vital that clients seek advice from a qualified professional. While a detailed discussion is outside the scope of this article, some relevant issues are considered below. If an intended beneficiary is bankrupt or is in impending bankruptcy, careful consideration must be given to how super death benefits are directed to that beneficiary. Generally speaking, lump sum super death benefits paid directly to a bankrupt beneficiary will be considered an interest from a superannuation fund, and accordingly will not be property that is divisible among creditors. In contrast, super death benefits received by a bankrupt beneficiary via a distribution from an estate will generally not constitute an interest in a regulated superannuation fund. Instead, having passed through the estate, the payment is considered to have lost the connection to being a superannuation interest. Consequently, such a payment is not afforded the same protection. Where bankruptcy of a beneficiary is a concern, ensuring that the intended beneficiary receives the lump sum death benefits directly (where eligible) by implementing the appropriate nomination, may provide asset protection advantages over directing the inheritance via the estate. If a beneficiary is neither bankrupt nor facing imminent bankruptcy, but has the potential to become bankrupt in the future (e.g. due to being in a high-risk profession), it may be more appropriate to first direct super death benefits to the estate, and then to a testamentary trust. Note: Should the beneficiary opt to receive the death benefits as an income stream, the degree of asset protection of superannuation would reduce, as pension payments are not fully exempt under bankruptcy laws. Relationship breakdown If structured appropriately, testamentary trusts can also provide a reasonable degree of asset protection in the event of a beneficiary’s marriage/de facto relationship breakdown. Assets held within the trust, including any super death benefits, will generally not form part of the pool of assets of the beneficiary’s relationship, but is generally considered a financial resource. The degree of asset protection afforded will depend on numerous factors, including who the controllers and beneficiaries of the trust are, and how long the trust has been in place prior to the relationship breakdown. If, on the other hand, the beneficiary had inherited the super death benefits directly, those assets may have a higher chance of being taken into account when making orders regarding the division of the couple’s property. ControlA concern of many clients is that if their minor children were to receive their assets upon their death, the child(ren) may not make the best financial decisions in regards to their inheritance. Similar concerns may arise when dealing with special needs beneficiaries, e.g. beneficiaries with mental disabilities or gambling, drug or alcohol dependency issues. A testamentary trust can provide a control mechanism to alleviate this concern, as it allows clients to elect a specific age for the child(ren) to access the capital (e.g. age 30) and/or take control of the trust. A nomination to the estate would need to be in place in respect of the super death benefits and the will updated to create a testamentary trust upon death to facilitate this. Social securityGrandfathering of account based pensions While a detailed discussion is outside the scope of this article, it may be advantageous from a social security perspective for an eligible beneficiary to receive a death benefit income stream as an automatic reversionary beneficiary. Means testing for social security payments For a beneficiary who is a recipient of a means tested social security entitlement (such as Age Pension), a lump sum inheritance received either directly from a super fund or via the estate will generally be exempt under the income test. However, the continuing asset and income test treatment will be determined by how the beneficiary makes use of the proceeds. For example, where the beneficiary invests the funds in a share portfolio, the value will be assessed as an asset and deemed. In comparison, the treatment may differ if the recipient is a beneficiary of a testamentary trust. The assets and income at the trust level are ‘attributed’ to the surviving spouse of the deceased, where the spouse is a:
Non-spouse beneficiaries are generally assessed under the standard attribution rules. Broadly, if they are deemed to control the trust, the assets and income of the trust are ‘attributed’ to the beneficiary. Beneficiaries who are not deemed controllers will simply have the actual distribution from the trust assessed as income for 12 months from the date of the resolution to distribute. For eligible beneficiaries with a severe disability, a special disability trust set up through the will with estate assets may be social security-friendly. Specifically, an assets test exemption of up to $657,250 (indexed) is available to the beneficiary in respect of trust assets, and income generated by the trust’s investments is also exempt from means testing. Accordingly, correctly structuring a gift using a testamentary trust may represent an opportunity for the beneficiary to maximise their social security entitlement. CostWhile there may be clear benefits of directing super death benefits to a testamentary trust via the estate, the costs must also be considered. Setting up, maintaining and managing a testamentary trust can be expensive. Further, costs to maintain the trust increase significantly where a professional trustee is involved. SummaryWhen it comes to the payment of super death benefits, there is no ‘one size fits all’ solution. Analysis of a number of factors is required on a case-by-case basis to determine the optimal course of action.
QUESTIONSTo answer these questions for your 0.5 CPD hours, go to fpa.com.au/cpdmonthly 1. Jackson, age 32, is single and does not have any children. He wishes to leave his super death benefits to his parents who reside overseas and are not financially dependent on him. Which of the following statements is correct?
2. Which of the following is not a risk of making a death benefit nomination to the LPR, rather than an eligible dependant directly?
3. Which of the following statements is false?
4. Tony nominates the LPR of his estate to receive his death benefit from super. From the estate, the death benefit ($1.2 million) is paid into a discretionary testamentary trust. Tony’s two adult children, Lisa and Andy, are the trustees of the trust. Lisa, Andy, their respective families and Tony’s third child, Michael, are beneficiaries of the trust.Which of the following statements is correct in respect of the impact of this strategy on Michael’s Disability Support Pension?
5. Following the death of an individual, assets held in superannuation will automatically be dealt with under the terms of their will.
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