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NSW Who will Son's Superannuation be Passed Onto?

Discussion in 'Superannuation Law Forum' started by Julie..., 5 October 2016.

  1. Julie...

    Julie... Member

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    My son recently passed away. His girlfriend listed herself as his de facto on the death certificate (shared a flat for 6 months). I cannot access his paperwork to confirm who he had listed as a beneficiary.

    On his other superannuation account, he listed his brother as 100% beneficiary. How is it decided who the super is passed onto?

    The fund won't tell me any details. I am worried if he had a death benefit she may be paid this amount. They lived together (when he wasn't in the hospital) but weren't financially dependent. We (his parents) where the ones who helped him financially when needed.
     
  2. MangoLover

    MangoLover Active Member

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    If he had a will, I believe that you as his mother can ask to see it or get a copy (for a cost) if you know where the will is, to see who the beneficiaries are. Superannuation is separate from a will and the beneficiaries listed with his fund will receive benefits as listed.

    My husband and I each initially had our 4 children listed as beneficiaries of our superannuation, but were told by our accountant that the children would then have to pay tax on their benefit, so we changed it to each other as the beneficiary. Obviously, we'll have to make sure we spend it all before the last one of us dies, as that could pose a tax problem for the kids!! (LOL).

    Perhaps your other son and beneficiary could roll it to his fund - check with an accountant for tax implications. You may have a claim on his estate if you could prove past financial support.
     
  3. Julie...

    Julie... Member

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    No will-only 26 years old. Can't locate any paperwork. So, there is no way that I can find this info?

    If the relationship was only 6 months old, would she be entitled?
     
  4. MangoLover

    MangoLover Active Member

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    How did she get to list as de facto on the death certificate? She would have to prove that and dependence in court surely, to make any claim.

    You can do a search for super funds (how many did he have?) since you would know all his personal details, or check with his employer/s. Have you tried contacting the ATO?

    You could also see the Public Trustee (what State are you in?) to see what you can do.
     
  5. Julie...

    Julie... Member

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    She was with us when we made funeral arrangements and they listed it on the death certificate
     
  6. EkkiJoy

    EkkiJoy Member

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    Hello,

    Unfortunately, yes, she is entitled to your son's superannuation and anything else they had together. It may have only been 6 months but the law states co-habitation is from 6 months onwards. Have you checked if they had a prenuptial agreement?

    If you do contest the judgment, your son's girlfriend has to prove she was with your son for that amount of time, not just hearsay.

    Good Luck
     
  7. Smiley

    Smiley Well-Known Member

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    Hi,

    In terms of your late son's girlfriend been listed as de facto on the death certificate, I would not be concerned. The "informant" can list anyone on the death certificate, the parties and their relationships listed on the death certificate are only FYI.

    You state your late son was living with his girlfriend for six months (at the time of passing).

    I assume she states, I was living with my de facto for six months.

    This is a matter of opinion. Unfortunately, superannuation legislation is very old school. Move in with someone and essentially they are man and wife for life.

    What is a de facto relationship?

    Factors may include, but are not necessarily limited to, the following:
    • the duration of the relationship;
    • the nature and extent of the common residence;
    • whether or not a sexual relationship existed;
    • the degree of financial interdependence, and any arrangements for support, between or by the parties;
    • the ownership, acquisition and use of property;
    • the procreation of children;
    • the performance of household duties;
    • the degree of mutual commitment and mutual support;
    • reputation and ‘public’ aspects of the relationship.
    As noted above, there is no time limit in regards to the duration of the relationship. It could be 6 months it could be 6 years. Some Trustee's have implemented a minimum duration of a relationship before it considers a de facto, amongst other criterion. EG Three years. But only a few have.

    It could be that your argument would be that the short duration of the relationship did not allow a de facto relationship to be formed.

    Letters of Administration

    If you are having issues with where the benefit is to be paid, it may be worth considering applying for a Grant of Administration.

    Essentially a Grant of Administration evidences that you act on behalf of your late son's estate. You may then seek the Trustee to pay the benefit to the Estate of your late son. You as the Administer of the estate would then distribute benefits of the estate. The process of applying differs slightly in each state, but the essence of what is required is essentially the same. Here is the link to the NSW Supreme Court:

    Applying for a grant of letters of administration

    If it is indeed that your late son was only with his girlfriend for six months, it may be difficult for her to obtain Administration which may give you an advantage.

    Cheerio
     
    EkkiJoy likes this.
  8. Jacqui Brauman

    Jacqui Brauman Well-Known Member

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    Hi Julie,

    The nomination of your son's brother as his beneficiary on his super fund will not be binding. The only people that can be nominated on a binding death benefit nomination are super dependents, which include a spouse, children or financial dependents. So it will be up to the super fund.

    You should contact the super fund. They will send forms out for all family members to complete. The super fund will make their own decision based on the information they are provided. If you do not accept the super fund's decision, you can appeal it.

    As Smiley says, you and your son's father are probably the most entitled to his intestate estate, so can apply for Letters of Administration. That would make you administrators of the estate (like executors under a Will). The super fund may decide to pay the super into the estate. The girlfriend could contest the estate to try to convince the Court that she is more entitled than you and your husband, but such a short term relationship is borderline.

    Good luck
     

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