New rules announced in the 2026-27 Federal Budget, combined with the growing complexity of superannuation death benefits, mean that it’s worth reviewing your arrangements to make sure your wishes can be carried out.
Testamentary trusts under the spotlight
Testamentary trusts have long been a popular estate planning tool because they can provide asset protection, flexibility and potential tax advantages for beneficiaries, particularly children.
The 2026-27 Federal Budget announced a new 30 per cent minimum tax on discretionary trusts, including testamentary trusts (those established by a will), from 1 July 2028.i
Following an outcry over what some called a “death tax”, the government announced exemptions for testamentary trusts, along with others including fixed trusts, special disability trusts and charitable trusts.ii
While the final shape of the rules remains uncertain, the Budget changes highlight the importance of ensuring estate planning arrangements are reviewed regularly.
The risks of an outdated will
Many people prepare a will and then leave it in a drawer for decades. But your personal and financial circumstances can significantly change over time.
Marriage, divorce, the birth of children or grandchildren, the death of beneficiaries, changes in asset ownership, or business succession arrangements can all affect whether an existing will still achieves the intended outcome.
Outdated wills can result in assets passing to unintended beneficiaries, family disputes and missed opportunities to achieve tax-effective outcomes.
So, review your will regularly and particularly after major life events occur.
Who gets your super?
One of the most common estate planning misunderstandings is assuming superannuation automatically forms part of an estate.
In most cases, superannuation benefits are not governed by your will. Instead, the trustee of the super fund determines who receives the death benefit unless a valid nominated beneficiary is in place.iii
A binding death benefit nomination allows you to direct the trustee of your super fund to pay your death benefit to specific beneficiaries.
Without a valid binding nomination, the trustee generally has discretion to decide who receives the benefit, subject to the fund’s governing rules and superannuation law.
Not all nominations remain effective indefinitely. Some funds require nominations to be renewed periodically, while others allow non-lapsing nominations.
Who qualifies as a dependant?
For superannuation purposes, the definition of a dependant is often different from what you might expect.
Generally, dependants may include:
- a spouse or de facto partner
- former spouses in some circumstances
- children of any age
- individuals who are financially dependent on the deceased
It may also include people in an “interdependency relationship” with the deceased. An interdependency relationship can exist where two people have a close personal relationship, live together and provide financial or domestic support to one another.iv
Importantly, being a beneficiary under a will does not automatically make someone a superannuation dependant.
The tax consequences can be significant
The tax treatment of superannuation death benefits depends heavily on who receives the money.v
If a death benefit is paid to a tax dependant, the benefit is generally received tax-free. Tax dependants include spouses, children under 18 years of age and people who were financially dependent on the deceased or in an interdependency relationship.
But adult children are often surprised to learn they may not qualify as tax dependants. If an adult child is financially independent, tax may apply to some components of a lump-sum superannuation death benefit.
As super balances continue to grow, the potential tax difference between payments to dependants and non-dependants can be substantial. This makes beneficiary nominations and estate planning decisions particularly important.
A coordinated approach is essential
Effective estate planning requires consideration of more than just a will. Superannuation nominations, testamentary trust structures, tax consequences and changing family circumstances should all form part of the conversation.
A regular review can help ensure your estate plan remains aligned with your objectives, takes account of current legislation and minimises the risk of unintended outcomes for your beneficiaries.
Please get in touch for information and advice about your estate planning and to confirm that it reflects your wishes.
i Introducing a minimum tax on discretionary trusts | ATO
ii Discretionary trusts reform implementation | Treasurer
iii Who gets your super if you die | Moneysmart
iv Superannuation interdependency relationships | AFCA
v Superannuation death benefits | ATO
