Is the Trustee a company?

Can I have a corporate trustee and a member who is not 18 years of age?

On the face of it, no. According to the Superannuation Industry (Supervision) Act 1993 ( SIS Act), each director of the corporate trustee must also be a member. The Corporations Act 2001 further requires that a company's director must be at least 18 years of age.

However, according to the SIS Act, if a member of a SMSF is under a legal disability due to age (i.e. is under age) and does not have a legal personal representative, the parent or guardian of the member must be a trustee of the SMSF in place of the underage member. But arguably this only applies where the trustees are individuals (and not where the trustee is a company)

If the trustee is a company, does this mean they are automatically the Principal Employer/Employer Sponsor?

No. Under the SIS Act, an employer-sponsor of a SMSF is an employer who:

1. contributes to the SMSF; or
2. would contribute to the SMSF, for the benefit of:
   • member of the SMSF who is an employee of the employer; or
   • a member of the SMSF who is an associate of the employer; or
   • the dependants of such a member in the event of the death of the member.

An employer sponsor is an employer which participates in the administration of the SMSF, including exercising powers such as the power to appoint and remove the SMSF's trustees and to approve any future variations to the SMSF's deed.

A principal employer is an employer which does not participate in the administration of the SMSF, but does make contributions for the benefit of one or more of the SMSF's members.

Cleardocs cannot give you any advice about this.The summary here is information only. It is provided by Maddocks.

What is the number of the clause in the Fund's existing Deed that allows the Trustee to vary, amend, or change the Deed?

If the SMSF's original deed has been amended, then use the latest most up-to-date version of the Deed (that is, the Current Deed).

Does the SMSF have a current 'Employer Sponsor' or a current 'Participating Employer'?

"Employer Sponsor" is the term used in the legislation to refer to an employer who is allowed by the SMSF's documents to contribute to the SMSF either:

• for the benefit of a Member of the SMSF who is employed by the employer (or who is employed by any of the employer's associates); or
• for the benefit of a dependent of one of those Member employees (from the previous dot point) who is now deceased.

Sometimes the "Employer Sponsor" is referrred to by another name — a common one is "Participating Employer".

What happens if the Principal Employer/Employer Sponsor has ceased to exist since the fund's original deed?

There are a few things you need to do:

1. go to the SMSF's original deed and see if there are any consequences if the employer-sponsor/principal employer ceases to exist, i.e. the SMSF ceases to operate. If so, seek legal advice from Maddocks.
2. if not, there is no requirement for the SMSF to have a principal employer/employer sponsor. However you must state that the original principal employer/employer sponsor was a party to the original deed.

Cleardocs cannot give you any advice about this.The summary here is information only. It is provided by Maddocks.

Who were the parties to the Fund's original Deed?

This includes Employer Sponsor, Principal, Trustee, Members, etc.

If the name of a party to the original deed which established the SMSF appears more than once in the list below, click on it only once.

Apart from the Trustee, does the existing deed (or rules for this fund) require the consent of anyone else before the existing deed can be updated?

Whose consent is required before the Fund can be updated?

The law says that for a SMSF's Deed to be updated, the trustee(s) must agree to the update. However, the SMSF's existing Deed, or rules, may say that somebody else must also agree to the update.

Some deeds require the consent of (for example) "a two-thirds majority of members". In that sort of case, include all the relevant people in your answer to the next question. (In this example, the relevant people are the members — and you need to make sure that at least two-thirds of them consent to the update.)

You can use the set of Minutes that Cleardocs provides as part of this document package to record the relevant peoples' consent to the change. To do that, make sure the minutes record the fact that the relevant people attended the meeting — the interface asks you about who is to attend the meeting in a few questions.

Cleardocs cannot give you any advice about this.The summary here is information only. It is provided by Maddocks.

What is the name of the person or entity whose consent is required to update the Deed?

You now need to provide information about the other person or entity whose consent to the update is required.

How is this person or entity referred to in the Fund's existing Deed?

Or what defined term is used to refer to that person or entity? Use a capital letter at the start of each word to show that it is a defined term.

What is this person's or entity's address?

Even if the existing Deed does not require the Employer Sponsor (or Participating Employer etc.) to consent to the update, our lawyers at Maddocks advise you to answer this question "Yes".

If you do, then that would mean that the Employer Sponsor would have to sign the documents. (However, if the Deed doesn't require them to consent, then you don't have to answer "Yes". You can decide.)

Who will attend the meeting to approve the Deed of Variation and the updates to the Fund's Deed?

The Trustee(s) must attend. If the Trustee is a company, the Directors of the Trustee must attend. So must anyone else whose consent is required for the SMSF to be updated. Other people may attend the meeting if you want them to.

It makes sense to have everyone involved in the SMSF attend.

Cleardocs cannot give you any advice about this.The summary here is information only. It is provided by Maddocks.

Is the Employer Sponsor's consent required to update the Deed?

Even if the existing Deed does not require the Employer Sponsor (or Participating Employer etc.) to consent to the update, our lawyers at Maddocks advise you to answer this question "Yes".

If you do, then that would mean that the Employer Sponsor would have to sign the documents. (However, if the Deed doesn't require them to consent, then you don't have to answer "Yes". You can decide.)

What is the date of the original deed which established the SMSF?

This is the deed which originally established the SMSF. Generally, the date of execution of this deed is the date on which the SMSF was established.