What happens if a spouse dies and has not left any beneficiaries in their retirement? Does it help if his Will is a mirror of yours? Does that also naturally qualify you for his retirement?
The Important Questions and the Following Questions should help people understand the relevant issues. You should also be clear that this article refers to the current situation in New South Wales, Australia; Laws differ from state to state and country to country.
People often expect their retirement to be part of their estate when they die. The same as any real estate, valuables or cash in the bank. This is not always the case. Unfortunately, unless an individual’s will names her estate as her retirement beneficiary, retirement dispersal will be at the discretion of the retirement fund administrator. The trustee is only bound by the terms of the trust deed or will if he names the estate as beneficiary. Even if the estate is named as the beneficiary of the retirement fund, the trustee can still decide to ignore it and focus on the trust deed for the fund.
Sometimes a spouse does not designate their estate as the beneficiary of their retirement. On occasion, they have also not established binding or non-binding assignments on the trustee of the Pension Fund. These would normally establish who would receive the pension and are by definition either binding or not.
A binding nomination is the best way to make sure your retirement is going where you want it to be. The fund manager is obliged to distribute the assets of the fund in accordance with the binding nomination.
A non-binding nomination simply lists the people you would like your funds to go to. The trustee is not required to follow these instructions. They can include any dependents you had at the time of your death, including family members, a spouse, children, or another person.
If your spouse passed away without a binding retirement nomination, you should add legal counsel as soon as possible. The attorney will review the retirement trust deed to assess how the trustee can distribute the retirement. Your legal advisor will also be able to negotiate with the trustee for his right. The fact that you can show mirror wills goes a long way towards supporting your claim.
In short, it is always good practice to consult legal help when writing a will, dispersing a will, or contesting a will. This assures you and your loved ones that your intentions will be followed as closely as possible.
