Super Isn’t Automatically Part of Your Estate And That Can Matter More Than You Think

Most people assume their superannuation will be dealt with by their will when they pass away. In many cases, that’s not what actually happens. Superannuation sits outside your estate. That means it isn’t automatically covered by your will, and it may not go to the people you expect unless the right steps are taken.

Why Super Is Different

Your super is held in a special structure called a trust. Legally, it’s not owned by you personally in the same way as your home, savings, or investments.

Because of this:

• Your will does not control your super by default

• The trustee of your super fund decides who receives your super after you pass away

• This decision is guided by the fund rules and any valid instructions you’ve put in place

If no clear instructions exist, the outcome may not reflect your wishes.

Real Risks People Don’t Expect

This isn’t just theory, it has played out in real legal cases.

For example, in one well-known case (Katz v Grossman), a father’s super ended up going to one child instead of being shared between both, simply because of who controlled the fund after his death.

In another case (Ioppolo v Conti), the person’s will clearly set out their wishes—but it didn’t matter. The court confirmed the will didn’t apply to the super. These situations can and do happen.

Where Things Often Go Wrong

We commonly see issues when:

• No valid binding nomination is in place

• Not written in line with the Trust Deed

• The nomination is out of date or incorrectly worded

• The structure of the fund gives control to someone unintended

• The will and the super arrangements don’t match

It’s also worth noting that while solicitors are highly skilled in estate law, superannuation sits under a different legal framework. Not all estate planning advice fully addresses how super is actually treated under superannuation law, so collaboration is needed.

What You Can Do

The good news is this can usually be managed with the right planning.

Key things to review include:

• Who controls your super fund if something happens to you

• Whether you have a valid and up-to-date binding death benefit nomination

• Whether your super arrangements align with your will

• How your super fits into your broader estate and family situation

A Practical Approach

At Vivace Advisory, we often work alongside clients and their existing solicitor or accountant to make sure superannuation is properly considered as part of the overall plan. It’s not about replacing other advice, it’s about making sure nothing is missed, particularly in an area that operates under its own rules.

Final Thought

Superannuation is often one of the largest assets people have, yet it’s one of the most misunderstood when it comes to estate planning. Taking the time to get it right can make a significant difference to the outcome for your family.