What happens if the Principal Employer/Employer Sponsor has ceased to exist since the fund's original deed?
If in practice, the fund does not have an Employer Sponsor or Participating Employer (as relevant), but there is
one named in the fund's current deed, then your documents will name that Employer Sponsor or Participating
Employer (as relevant) in the deed of variation and they will be required to sign it.
If that Employer Sponsor or Participating Employer (as relevant) no longer exists, is no longer involved in the fund's administration or is
unable to sign the deed of variation, then you should ring us on 1300 307 343 and we will arrange for you to speak
with our lawyers at Maddocks.
What do I do if the SMSF trust deed is lost?
If the SMSF's trust deed has been lost, then you need to consider
the following steps in consultation with a lawyer:
- Arrange for all parties to the deed to conduct a thorough search for the deed;
-
Contact the person (maybe a solicitor or accountant, or their firm) who arranged the deed to see if
they have a copy;
-
Ask the person (maybe a solicitor or accountant, or their firm) who arranged the deed if
they have a deed which they arranged around the same time as your lost deed was arranged; and
- Seek advice from your lawyer as to whether you can use a similar deed to replace the lost Deed.
Maddocks provides a specialist service for lost SMSF Deeds.
What happens if I die and I do not have a Binding Death Benefit Nomination or Death Benefit Agreement in place for my fund and there is a surviving member of the fund?
If you die and you do not have a binding Death Benefit Nomination or Death Benefit Agreement in place, then the trustee of the fund, most often the surviving member of your fund either as a trustee in their personal capacity or as the sole remaining director of a corporate trustee, will determine how your death benefit entitlement is dealt with.
That trustee of the fund has to notify certain persons regarding the death benefit entitlement. Please refer to our FALQ 'If I am a surviving trustee of a fund which uses the Cleardocs SMSF trust deed product and a member of the fund has died, do I need to notify anyone of the deceased member's entitlement?'
For example, that trustee could decide that your member benefit entitlement is paid 100% to themselves (i.e. the survivor). Or, he or she could decide to pay it to your legal personal representative, being to your estate or to any other dependants. This can be a complicated process if you are dealing with a second marriage or a blended family.
To help avoid these complexities, you can choose that your legal personal representative, being the executor of your will or administrator of your estate, can step into your shoes as replacement trustee/director so that person can make the decision together with the surviving trustee. This would have to be written into your deed.
However, the best way to ensure that your wishes regarding your death benefit entitlement are implemented is to have a Binding Death Benefit Nomination or Death Benefit Agreement in place!
If I am a surviving trustee of a fund which uses the Cleardocs SMSF trust deed product and a member of the fund has died, do I need to notify anyone of the deceased member's entitlement?
Yes, if there is no valid binding death benefit nomination or death benefit agreement in place at the time of the deceased member's death..
You must give written notice that a benefit is payable to the following persons:
- a nominated beneficiary;
- a reversionary beneficiary;
- the legal personal representatives of the member;
- known dependants of the member; and
- any other person that you reasonably believe may have an entitlement or interest in the benefit.
The notice must include how and by what time the person or persons may make a claim for the benefit and following this time you must notify the person or persons you previously notified about the benefit to enable them to object to payment to the person or persons.
Does the SMSF Trust Deed take into account the recent changes in the law related to COVID-19?
Yes, the SMSF Trust Deed has been updated to allow debits from an accumulation account resulting from a COVID-19 Determination (which is a determination issued by the Commissioner of Taxation allowing the early release of super because of the economic effects of COVID-19 on a member).
If my fund is already paying a legacy pension (such as a life pension or allocated pension), will the Cleardocs SMSF trust deed support the payment of that pension?
Yes. The Cleardocs SMSF trust deed accommodates legacy pensions. The deed grants the trustee a broad discretion to pay pensions or annuities of any type permitted by superannuation law, and allows a member to choose the type of pension to be paid, provided the pension type is allowed by superannuation law and is acceptable to the ATO.
Importantly, the deed includes a protective provision which ensures that any variation of the deed does not vary existing pension agreements or arrangements unless the variation expressly states otherwise. This means that if a fund is already paying a legacy pension, updating the deed will not disturb the terms of that pension.
However, SMSF trustees should be aware that:
- Special rules apply to funds paying legacy pensions which are not set out in the Cleardocs product disclosure statement. Further details can be found on the ATO website here. Trustees should seek specialist advice regarding the ongoing administration of legacy pensions, many of which require the services of an actuary.
- The deed requires the trustee to obtain actuarial certificates and any other certificates required by superannuation law where a pension is being paid from the fund.
Important note: SMSF trustees paying or receiving a legacy pension ought to seek professional advice to ensure the pension is being administered in accordance with both the deed and superannuation law.
Does the Cleardocs SMSF trust deed allow the fund to invest in cryptocurrency?
Yes. The Cleardocs SMSF trust deed expressly authorises the fund to invest in cryptocurrency. This is because:
- The deed lists 'synthetic instruments or blockchain technology, including any form of cryptocurrencies' as a category of authorised investment; and
- The deed also grants the trustee an express power to purchase, acquire, sell, transfer, dispose of, deal in or enter any contract in respect of investments comprising synthetic instruments or blockchain technology, including any form of cryptocurrencies.
However, notwithstanding that the SMSF trust deed permits investment in cryptocurrency:
- Any investment in cryptocurrency must still be consistent with the fund's investment strategy and must not be an investment that is prohibited by superannuation law;
- Given the volatility of cryptocurrency and the evolving regulatory environment for digital assets, SMSF trustees should consider seeking professional advice (financial and tax and/or legal advice) before investing in cryptocurrency or similar assets; and
- Trustees should also ensure that cryptocurrency holdings can be securely held, properly recorded as fund assets and valued at market value in accordance with the requirements of superannuation law.
10-15 minutes depending on the number of members.
Optional printing, binding and delivery - from $88.00 (including GST)
The master documents are written in plain
language and are signed-off by our lawyers at Maddocks.
