In short
Your Will does not automatically control your superannuation. A super death benefit is paid under superannuation law and the fund’s rules. The fund trustee may pay it directly to an eligible dependant or to your legal personal representative, meaning your estate.
If the benefit is paid to your estate, your Will governs its distribution, subject to estate debts and claims. A valid binding death-benefit nomination may instead require the trustee to pay an eligible person directly. The nomination, fund rules and your circumstances at death all need to align.
Why is super different from an asset in your Will?
Your super is held by the fund trustee for members and beneficiaries. It is not simply a personal bank account that your executor collects because it is mentioned in your Will.
Superannuation law generally permits a death benefit to be paid to your legal personal representative or one or more of your dependants. The trustee must also follow the fund’s governing rules and any effective direction.
This creates two possible paths:
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A direct payment to a dependant ordinarily stays outside the administration of your estate.
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• A payment to your legal personal representative enters the estate and is then dealt with under the Will or under intestacy rules if there is no valid Will.
What happens if your Will and nomination say different things?
The document that controls the payment route is usually the nomination, read with the fund rules and superannuation law, not the later wording in the Will.
Suppose your Will divides your estate equally between your two adult children, but your valid binding nomination directs the entire super death benefit to your spouse. If the trustee must pay your spouse directly, the Will does not reroute that benefit to the children.
If the nomination instead directs payment to your legal personal representative, the benefit enters the estate. It can then follow the gifts or trusts created by the Will, after the executor deals with estate liabilities and administration.
Who can receive a super death benefit?
Under superannuation law, the usual recipients are your legal personal representative and your dependants. “Dependant” includes a spouse, a child and a person in an interdependency relationship. A person who was financially dependent on you may also qualify.
Not every person you would like to benefit can be named for direct payment. A friend, sibling or charity may not be an eligible dependant merely because they are included in your Will. Payment to the estate may be the available route if you want the Will to benefit a person who cannot receive the super directly.
Eligibility under superannuation law is also different from the tax meaning of “death benefits dependant”. For example, an adult child may be eligible to receive super but may not receive the same tax treatment as a spouse or a financially dependent child. Tax advice should be obtained before choosing between direct and estate payment.
What does a binding nomination do?
A valid binding death-benefit nomination can require the trustee to pay the benefit to the eligible recipient or recipients you have named. It is binding only if the fund offers that option and the nomination complies with the applicable law and fund rules.
A binding nomination can fail if the form is defective, the percentages do not work, it has expired, or a nominated person is not eligible at the date of death. The requirements and duration of a nomination may vary depending on the fund and the type of nomination.
What if the nomination is non-binding or there is no valid nomination?
A non-binding nomination tells the trustee what you would prefer, but it leaves the final decision with the trustee. The same may apply if there is no nomination or the nomination has expired or is invalid.
The trustee’s discretion is not unlimited. It must identify legally eligible recipients, apply the fund rules, gather relevant information and perform its duties properly. The process can take time where family circumstances or dependency are disputed.
Check whether the nomination actually binds the trustee. A beneficiary name on an annual statement does not, by itself, answer that question.
What should you check now?
For each super account:
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Obtain the current nomination, the fund’s acknowledgement, the rules applying to that nomination and its expiry date.
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Confirm whether the nominated person is likely to be eligible.
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Compare the result with the Will. If the nomination pays the estate, check what the Will does with the benefit. If it pays someone directly, do not assume a different gift in the Will will override it.
Our Wills and estate planning service can review how the nomination and Will interact.
Business owners can also use our estate planning guide for business owners to coordinate super with company, trust and succession documents. If a benefit has already been paid or a trustee decision is disputed after death, estate and provision claim advice may be required.
To check whether your Will and super death-benefit arrangements produce the same intended result, contact Biz Lawyers & Advisory or call 1800 893 836.
This article provides general information only. It is not legal, taxation, financial or investment advice, and the outcome depends on the fund rules, nomination, relationships and circumstances at death.
Primary sources
Law and guidance checked 13 August 2026.
- Superannuation Industry (Supervision) Act 1993 (Cth), particularly ss 10, 10A, 17A and 59.
- Superannuation Industry (Supervision) Regulations 1994 (Cth), particularly regs 6.17A and 6.21–6.22.
- Income Tax Assessment Act 1997 (Cth), Division 302.
- Hill v Zuda Pty Ltd [2022] HCA 21.
- ATO LCR 2017/3 — superannuation death-benefit income streams.
- Succession Act 2006 (NSW), particularly the notional-estate provisions in ss 74–87.
- Moneysmart — Who gets your super if you die?.
