LawTalk Blog

Administrators obligation to apply for superannuation benefits

Administrators obligations for super benefits

A great number of people do not understand the importance of having a Will and of having well considered superannuation nominations in place. They are important, and for many different reasons.

When someone has died it is usually the case, at least in South Australia, that the person most likely to receive the greatest benefit from the deceased's superannuation contributions and death benefit is the same person as would be the executor of an estate (where there is a Will) or the administrator of the estate (where there is no Will or no executor).

This causes a problem, raised by the recent case of McIntosh v McIntosh [2014] QSC 99, because an executor or administrator is required to seek that superannuation be paid to the estate, instead of looking to have it paid to themselves in their own right.

In the McIntosh case, a mother obtained letters of administration for her deceased son's estate, and then applied to have superannuation paid to her personally. The trustee of the fund decided to pay the superannuation benefit to her (and not to the father) but the Court subsequently ordered that she repay all of the superannuation back to the estate, which means that it will be shared between her and the father despite the decision of the fund.

The Court made the order because the mother should have applied for the superannuation to come to the estate in the first instance.

The mother didn't know that she was doing the wrong thing and many others also would not know.

She could have been over $200,000 better off if the trustee of the superannuation fund had made the same decision without the mother having taken up letters of administration or with the mother making an application for the super on the estate's behalf. Instead she lost that possibility, has a finding against her that she has breached her duties as administrator and she has presumably lost thousands in legal costs.

Administrators (and to a lesser extent executors) have a duty to put their personal interests aside and to put the interests of the estate first. This can often cause practical difficulties when administering an estate, but it exists to protect the beneficiaries of the estate against any wrongdoing.

Unfortunately the husband or wife of the deceased can be left in a serious predicament: risk not having the superannuation or face the possibility that the estate will be finalised more slowly than if they were the administrator or executor.

This case is a reminder that people need to have Wills and need to consider their superannuation arrangements properly, and make binding death nominations where possible.

Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors. It relates to South Australian legislation. Andersons Solicitors is a medium sized law firm servicing metropolitan Adelaide and regional South Australia across all areas of law for individuals and businesses.

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