Integrating Superannuation into Estate Planning. Michelle Meyer Consulting Principal
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1 Integrating Superannuation into Estate Michelle Meyer Consulting Principal
2 Super Disasters Gov t has made it clear superannuation cannot be used to facilitate estate. Sole purpose test with prescribed SISA investment restrictions ensures the retirement income objective is met Member s benefits must be cashed out when the member s Reg (SISR) super death benefit Super death benefits are not necessarily an estate asset Leaving super death benefits in your Will to your spouse or children will generally not be effective at law 2
3 Super Disasters Who can receive your super death benefit? Your LPR or Dependants, defined S10(1) SISA as: Spouse or de facto Your child, any age, adopted, ex-nuptial (not step-child* Interdependents: close personal relationship and live together and provide financial or domestic support (or suffers from disability) at date of death *ATOID 2011/77: Step-child ceases to be a child on termination of the relationship i. Who can receive the death benefit? ii. Who can receive super death benefit tax free? iii. Super fund trust deed 3
4 Super Disasters Who can receive super death benefit tax free?* Your death benefit dependants, defined s ITAA 1997 to include: Spouse or former spouse (de facto) Your child < 18 (Financial) dependant Interdependent *Tax-free component (undeducted contributions) are always tax-free i. Who can receive the death benefit? ii. Who can receive super death benefit tax free? iii. Super fund trust deed 4
5 Superfund trust deed also governs who can receive your death benefit. Depends on: Terms of trust deed formal requirements for valid DBN Type of DBN made NBDBN v BDBN Super Disasters i. Who can receive the death benefit? ii. Who can receive super death benefit tax free? iii.super fund trust deed 5
6 Terms of Industry superfund deed will usually provide for BDBN and/or NBDBN If no ability to make BDBN, or BDBN made but is invalid or has lapsed (3 year rule), trustee of superfund decides? Super Disasters 6
7 Terms of most SMSF deeds will provide for both BDBN and NBDBN Failure to complete when fund established Have completed but unaware that DBN has lapsed Have completed but subsequent amendment to super deed render nomination invalid If no valid BDBN, trustee of superfund decides? Super Disasters *Reg.6.17A doesn t apply to SMSF unless imported into the terms of the trust deed 7
8 Super Disasters Depends on: Terms of the super trust deed as to what is available Whether member is drawing on super income stream Whether the member has tax dependants Member s overall estate objectives If no valid BDBN, trustee of superfund decides? 8
9 Super Disasters What happens to your superannuation when the trustee loses capacity or s? If the trustee is an individual cannot have sole individual trustee s17a(2)(b) SIS Act If the trustee is one of several individual trustees surviving trustees can act or EPOA/LPR s17a(3) If the trustee is a company - EPOA or LPR can act as director until death benefit paid s17a(3) SIS Act See A for detailed analysis 9
10 Super Disasters What is a reversionary pension- pre-existing pension payable to a dependant (the reversionary beneficiary) on death of the primary pension fund member Not a new pension but a redirection of an existing one Usually reverts to surviving spouse/partner-payable to single eligible beneficiary TR 2013/5 ATO view is super income stream will cease on death unless a dependant beneficiary is automatically entitled to receive that income stream The superfund governing rules, or the rules governing the super income stream, must provide for an ARP, with no discretion to the trustee 10
11 Super Disasters Where an ARP, only need BDBN re balance in accumulation mode Can usually change BDBN or ARP (by commuting and recommencing or changing terms of pension during lifetime) What happens when deceased leaves an ARP and a BDBN? 11
12 - Super Disasters Super Disasters Katz v Grossman (2005) NSWSC Mr & Mrs Katz have two children Mr & Mrs Katz are trustees of their SMSF Mrs Katz s and daughter is trustee in place of deceased mother Mr Katz signs DBN in favour of the two children equally Mr Katz s Daughter appoints her husband as trustee & decides to pay entire super benefit to daughter Court does not interfere with that result as daughter validly appointed trustee and trustee had complete discretion. 12
13 - Super Disasters Super Disasters Wooster v Morris (2013) VSC Mr & Mrs Morris members of SMSF BDBN completed by deceased in favour of his daughters from a 1 st marriage Mrs Morris advised BDBN not valid as didn t comply with SF Deed as delivery of DBN to trustee was required Mrs Morris paid death benefit to her SF account Application to SC referred to Special Referee- determined DBN was binding Proceedings before judge related to costs, int & quantum Held: Mrs Morris to pay daughters costs & that she lost right of indemnity as failed to act impartially & therefore acting in breach of trust 13
14 - Super Disasters Super Disasters Moss Super P/L v Hayne (2008) VICSC Mr Hayne & de facto Ms Moss were Directors of PMS P/L which was trustee of SF. Each had own children. Mr H s Will divided estate equally between Moss and each of their children Memo of Wishes that super be paid into estate Executor purported to change trustee to a co under Moss sole control. As trustee she could decide on super death benefit. Issue: was super retained by SF (payable to Moss & deceased s kids but not kids of Ms Moss) or part of estate (payable to all kids) Held: Change of trustee ineffective (as POA held by original trustee co not Ms Moss as sole surviving member). Super death benefit remained in SF to be dealt with according to SF deed & Moss kids missed out. 14
15 - Super Disasters Breadner v Granville-Grossman (2004) SF trust deed required exercise of power re BDBN to be done before closing date. BDBN executed one day late Issue: should Court interpret as on or before closing date. Held: no jurisdiction to grant relief re defective execution of a power as can only undo something which is done. So if don t exercise power at all or within time, Court won t interfere. Super Disasters 15
16 - Super Disasters Super Disasters Donovan v Donovan (2009) QSC Dispute between 2 nd spouse Helga & daughter of 1 st marriage, Lynda Mr & Mrs Donovan were directors of co trustee of SMSF Trust deed amended to allow for BDBN Mr D wrote to trustee to inform of his wish that death benefit be paid to estate Daughter commenced proceedings contending letter binding on trustee Held: not binding as letter didn t comply with requirements of deed 16
17 - Super Disasters Super Disasters Ioppoloo & Hesford v Conti (2013) WASC Mr & Mrs Conti trustees and members of SMSF Mrs Conti s Will contained wish that super not be paid to her husband but to her kids. No BDBN. Post death, Co Trustee appointed. Executor sought appointment as trustee. Held: while trust deed allowed executor to be trustee, it did not require this. Executor argued trustee did not exercise discretion in bona fide manner & sought review. Held: No evidence of this as co trustee could ignore wishes in the Will. Review of exercise of trustee s discretion denied. 17
18 Super Disasters Failure to carefully consider client s superannuation death benefit options as part of estate can be costly Wooster v Morris [2013] VSC Munro v Munro [2015] QSC When integrating super into estate : Ensure your client s super deeds are in order Draft any requisite BDBN in accordance to terms of SISA, SISR and superfund trust deed and any rules Attend to proper execution of any BDBN make provision for death or incapacity of individual trustees or directors of corporate trustees 18
19 - Scenario Super Disasters Scenario Mum, dad and three children aged 18, 15 & 10 Dad s Assets: Family home jointly held $1 mil Investment property dad s name$500,000 Life insurance $1 mil Shares dad s name $500,000 SMSF shares $500,000 cash $250,000 Debt mortgage on home $500,000 19
20 - Scenario Super Disasters Estate considerations Loss of capacity POA & EG Life insurance is there enough, to whom is benefit paid Estate objectives Consider use of testamentary trusts-not used What are the terms of the SMSF Trust Deed Is it complying and up to date? Who are trustees and members? (Mum & dad) Has a valid DBN been made? (No) 20
21 - Scenario Super Disasters Dad s aged 54 and mum is 47: Mum receives dad s assets directly (no testamentary trust) Mum is sole surviving individual trustee of SMSF SISA s17a(2)(b): you cannot have a sole individual trustee of a SMSF so mum appoints daughter as 2 nd trustee Super has to be paid out as a death benefit (mum with cotrustees consent)could direct payment to herself, all or any of kids, or to the LPR (no testamentary trust) Mum needs to transfer all shares into name of new trustee of superfund & then transfer again to the beneficiary 21
22 - Scenario Super Disasters Dad s aged 61, mum is 54 and in pension mode(children 25, 22 & 17): Mum receives dad s assets directly (no TT) Sole surviving trustee of SMSF issue Take reversionary pension what does deed say, is there an auto right to reversionary pension? You can transfer a super income stream if SMSF deed or valid BDBN provides for an automatic transfer (TR2013/5) If can t take reversionary pension, Mum, with daughter s consent, can decide to pay super death benefit to herself or the estate (as lump sum or new pension) (reg 6.21) 22
23 - Scenario Super Disasters Surviving mum remarries aged 64 and s on honeymoon: Assets: Family home $4mil Dad s investment pty $1mil Life insurance $1mil Shares dad s name $1mil SMSF dad s shares $1mil cash $350,000 Debt mortgage on home $nil SMSF- mum s shares & cash $500,000 23
24 - Scenario Marriage revokes the will (s12 SA). On intestacy, half of mum s assets go to new spouse (s113 SA). Mum s Super: must be cashed out. No DBN. Surviving trustee daughter can appoint her de facto (or sibling) as co-trustee and decide to pay benefit to herself (or equally) Super Disasters 24
25 - Scenario If marriage didn t revoke the will (as will was well-drafted) Under terms of mum s will, estate assets passed to kids equally, subject to the estate dispute re 2 nd spouse. Superannuation: daughter could still pay benefit to herself Super Disasters 25
26 - Scenario Super Disasters What should have happened? Dad should have considered: Severing joint tenancy on family home Setting up testamentary trust under well drafted Will to protect inheritance Setting up super death benefits trust under Will to protect inheritance Appointing corporate trustee of SMSF and completed DBN 26
27 - Scenario When dad d, mum should have considered: Taking bulk of his estate into the testamentary trust Taking the super death benefit into her name and recontributed during her lifetime or directing the super death benefit to the estate to be held in a death benefits trust (she would have control of distributions of income to tax dependants) Super Disasters 27
28 - Scenario Super Disasters Prior to 2 nd marriage, mum should have considered: Codicil to her Will to provide for 2 nd spouse out of her estate and/or super death benefits E.g. Under her Will provide for 2 nd spouse by: Granting right of residence in family home, lump sum for life s contingencies and a trust fund, the income of which would meet needs of 2nds spouse Execute a valid BDBN that super death benefits be paid to the estate to fund the 2 nd spouse trust Or execute a BDBN where her super pension reverts to 2 nd spouse (& her children get what is in her estate via testamentary trusts), providing terms of super income stream or terms of superfund deed provide for an automatic reversionary pension (TR2013/5) 28
29 A- Individual trustees Super Disasters When one of several individual trustees loses capacity: A super fund cannot have a sole individual trustee (SISA s17a(2)(b)) The other trustees can continue to act as trustee and make decisions Holder of a power of attorney can act as trustee of fund in place of the incapable trustee (SISA s17a(3)(b)(ii)) The incapable trustee can be replaced and a new trustee appointed (TA ss(2)(e) & (4)(b) & s70) 29
30 A- Corporate trustees Super Disasters Sole director of a single member fund trustee company loses capacity: A sole director of a trustee company who loses capacity can nominate a person to take his place as alternate director via an enduring POA (SISA s17a(3)(b)(ii)) The personal representative appointed to administer the incapable director s property may appoint a new director (Corps Act s201f) 30
31 A- Corporate trustees Super Disasters One of several directors of a trustee company loses capacity: The remaining directors may be able to continue to manage the trust and/or appoint another director The incapable director may have appointed another person to take his place as an alternate director via an enduring POA (SISA s17a(3)(b)(ii)) What does the company s constitution say? 31
32 A- Individual trustees When one of several individual trustees s: The other individual trustees can continue to act and can appoint a new trustee (TA s6(2)(a) and (4)(b)) The executor of the deceased can act as a trustee of the superfund until the death benefits are paid (SISA s17a(3)(a)) You cannot have a sole individual trustee, even if a single member fund (S17A(2)(b)SISA) Super Disasters 32
33 A- Corporate trustee Super Disasters When director of trustee company s: The trustee company continues to act as trustee When sole director of single member fund s: The deceased director s executor can act as a trustee of the superfund until the death benefits are paid (SISA s17a(3)(a))* The deceased director s executor may also appoint a person as the director of the company (Corps Act s201f) *Exception to s201f Corps Act 2001 (Cth): requires that each director of a corporate trustee of a superfund is a member of the fund 33
34 A- Corporate trustee Super Disasters When one of several directors of trustee company s: The remaining director(s) can continue to manage the trust & appoint another director The executor of the deceased director can act as a trustee of the superfund until the death benefits are paid (SISA s17a(3)(a)) What does the company s constitution say? 34
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