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Corporate Trustee v Individual Trustee: Key Differences for SMSFs

Apr 2011

This article highlights the advantages and disadvantages of choosing a corporate trustee over an individual trustee for a self managed superannuation fund and other trusts generally.

Nicole Siemensma
 

Benefits of having individual trustees

If individuals act as trustees of your SMSF, then you minimise the administrative hassle and upfront costs of establishing a company to act as trustee. Other benefits are:

  • no ASIC forms to complete to establish the SMSF;
  • no ongoing ASIC reporting obligations to comply with; and
  • fewer procedural issues to deal with, as there are more flexible requirements for holding trustee meetings and no need to comply with a company constitution.

Benefits of having a corporate trustee

A corporate trustee can offer you the following long term benefits which individual trustees cannot provide:

  • Liability issues — companies have the benefit of limited liability. Therefore, if a corporate trustee suffers any liability, the individual directors will not suffer personal liability (other than in exceptional circumstances). On the other hand, an individual who acts as trustee exposes their personal assets if they incur any liability as trustee of an SMSF or other trust: if the individual's right of indemnity against the SMSF is not sufficient to discharge the liability, then the individual is still liable for the shortfall.
  • Simpler succession and control of a trust on death of an individual — a company continues to function even after the death of one of its directors, therefore, the control of a SMSF or other trust can continue even after the death of an individual SMSF member/director.
  • Assets are kept separate — it is easier for a corporate trustee to ensure that trust assets are kept separate from the personal assets of SMSF members.
  • Administrative efficiency for SMSFs — if a new member is introduced to an SMSF, then, generally they must become a trustee of the fund. If the relevant SMSF has:
    • a corporate trustee, then a new director needs to be appointed to the company and notified to ASIC; or

    • an individual trustee, a deed of appointment needs to executed and, in most cases, all trust assets need to be transferred into the new trustee's name (or jointly with other trustees). This can cause major administrative hassles if the trust assets consist of real estate and shares. The hassles do not apply to a corporate trustee as the SMSF assets are usually held in the company name, and the company remains as trustee.

  • Lender requirements for limited recourse borrowing arrangements — bank lenders generally insist upon (or at least prefer) the SMSF having a corporate trustee.


Summary table

In summary, this table highlights the advantages (✓) and disadvantages (⨯) of having a company or individual acting as trustee.

 

Corporate Trustee

Individual Trustee

Costs of establishing the trustee

ASIC reporting requirements of the trustee

Procedural issues for holding meetings

Liability of the trustee

Succession planning

Keeping assets separate from non-SMSF assets

Administrative efficiency of SMSFs

Limited recourse borrowing arrangements

It is important to remember that choosing a trustee structure is a personal choice and you should make the decision based on your circumstances.

More information from Maddocks

For questions or more information about the above article, please call Maddocks in Melbourne (03 9288 0555) and ask for a member of the General Commercial Team.

More Cleardocs information on SMSFs

You can read other articles concerning superannuation and SMSFs here.

Order SMSF related document packages

Set up an SMSF

Update an SMSF deed

Set up an SMSF pension

Arrange SMSF borrowing lending docs:

Set up an SMSF corporate trustee

Change an SMSF Trustee

SMSF Death Benefit Nomination - binding or non binding

SMSF Death Benefit Agreement - binding or permanent

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Lawyer in Profile

Geoff Musgrove Geoff Musgrove
Partner
Phone: 61 3 9258 3530

Geoff Musgrove is a partner in the Maddocks Commercial team.

Geoff's principal areas of practice are:

  • commercial contracts;
  • mergers, acquisitions and disposals;
  • joint ventures;
  • intellectual property and information technology law;
  • corporate law;
  • business restructuring and insolvency; and
  • franchising.

Geoff acts for a wide range of commercial, government, accounting, manufacturing, professional and rural industry clients.

 

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