Can my SMSF have up to 6 individual trustees?
Legally, yes. However, more than 3 individual trustees is unwieldly and makes registration of assets in the name of the SMSF difficult (for example, brokers and ASX companies will not follow more than 3 people to be listed as owners of shares).
Maddocks, therefore, does not recommend that a SMSF has more than 3 individual trustees. Instead of appointing more than 3 individual trustees of a SMSF, we recommend that you consider appointing a corporate trustee.
What are the conditions of a SMSF according to the SIS Act?
Speaking generally, for an SMSF to be complying:
- It must have 6 (or fewer) members;
- Each individual trustee must also be a member;
- Each director of a corporate trustee must also be a member;
- No member can be an employee of another member - unless the two members are related; and
- No trustee can receive payment from the fund for their services as trustee.
There are some limited exceptions to numbers 2 and 3 above.
Can fund members be non-Australian residents?
Yes, fund members can be non-Australian residents.
However, there will likely be serious tax consequences if all members of the SMSF reside overseas for an extended time.
Can a member be under a "legal disability" and still be a member?
Yes, a member can be under a "legal disability" (other than on account of them being younger than 18),
as long as the legal personal representative of the disabled member is a fund trustee or, where a member does not have
a legal personal representative, a parent or guardian of the disabled member is a fund trustee.
If the trustee is a company, then the legal personal representative of the disabled member, or where a member does not
have a legal personal representative, a parent or guardian of the disabled member, must be a director of that company
in place of the member.
Please note that the Cleardocs SMSF products are only suitable where a member does not have a legal personal representative
and wishes to appoint a parent or guardian to act as an individual trustee or director of the corporate trustee.
Can a member be less than 18 years old?
Yes, a person who is under 18 can be a member of an SMSF.
If the member has a legal personal representative, then the member's legal personal representative must be a trustee
of the fund or a director of the corporate trustee in place of the member.
If the member is under 18 and does not have a legal personal representative, then the member's parent or guardian
must be a trustee of the fund or a director of the corporate trustee in place of the member.
Remember however, that the Cleardocs SMSF products are only suitable where a member does not have a legal personal
representative.
What are the conditions of single member SMSFs according to the SIS Act?
Speaking generally, for an SMSF has only one member, then the SIS Act requires that:
- If the trustee is a company, then the member must be:
- the sole director; or
- one of only 2 directors who are relatives; or
- one of only 2 directors and the other director must not employ the member.
- If the trustee is an individual:
- the member is one of only 2 trustees who are relatives; or
- the member is one of only 2 trustees, and the other trustee must not employ the member.
Remember, the law says that trustees of an SMSF cannot receive payment from the SMSF
for duties or services performed in relation to the SMSF.
If the trustee is a company, should it be the Principal or Employer Sponsor?
No, the corporate trustee shouldn't establish the SMSF. The person or entity who establishes the SMSF — the Principal or Employer
Sponsor — is
party to the SMSF deed and executes it with the trustee. The corporate trustee and the Principal or Employer Sponsor should not be the same
person, as there should be at least 2 parties to the deed.
The person or entity who establishes the SMSF can be any other company or any person, including any of the Fund's members. If the person or
entity who establishes the SMSF is not the Employer Sponsor, they will have no ongoing role in the Fund once it has been established, and have
no further obligations under the SMSF deed. The Employer Sponsor will have an ongoing role and ongoing obligations under the SMSF deed as the
employer sponsor, such as to consent to any variation of the Fund's deed.
What happens if a beneficiary named in a member's death benefit agreement, or binding death benefit nomination, dies?
The Cleardocs interface for these products allows the customer the following choices to cater for a beneficiary or beneficiaries dying before
the member:
- If the document names more than one beneficiary, then the deceased beneficiary's portion of the death benefit can be either:
-
distributed to the remaining beneficiaries in equal proportions;
-
distributed to the member's legal personal representative (to be dealt with as part of the member's estate); or
-
paid in accordance with the fund's trust deed and superannuation law, which will confer a discretion on the trustee.
- If the document names more than one beneficiary and all beneficiaries die before the member, then the member's death benefit can be either:
-
distributed to the member's legal personal representative (to be dealt with as part of the member's estate); or
-
paid in accordance with the fund's trust deed and superannuation law, which will confer a discretion on the trustee.
- If the document names only one beneficiary, then the deceased beneficiary's portion of the death benefit can be either:
-
distributed to the member's legal personal representative (to be dealt with as part of the member's estate); or
-
paid in accordance with the fund's trust deed and superannuation law, which will confer a discretion on the trustee.
What happens if the nominee of a Death Benefit Nomination dies at the same time (say, in a car accident) as the nominator?
If the nominee of a Death Benefit Nomination dies at the same time as the nominator, the law says that the oldest person is taken to have died
first.
If more than two persons die simultaneously then they are taken to have died in the order from oldest
to youngest.
So, if two people nominate each other in their Death Benefit Nominations, and the nominations:
-
Are binding, then the older person's nomination will take effect and the death benefit will pass to the younger person.
The younger person's binding nomination cannot take effect because the nominee is deceased:
the death benefit will then be paid by the trustee in accordance with the SMSF's trust deed; and
-
Are non-binding, then the trustees will use their discretion and distribute the relevant members'
benefits as they see fit and in accordance with the SMSF's trust deed.
What happens if all the trustees (directors of the trustee) die at the same time (say, in a car crash)?
In these circumstances, the law says that the oldest person is taken to have died first.
If more than two persons die simultaneously then they are taken to have died in the order from oldest to youngest.
Concerning what happens if the trustees (directors of the trustee) have nominated each other in
their death benefit nominations, then see the answer directly above.
After a trustee dies, their legal personal representative may act as either a trustee of the fund or
as a director of a body corporate that is the trustee of the fund.
So if all the trustees (or directors of the trustee) die at the same time, then the SMSF remains an
SMSF until the death benefits are paid. At this point, the legal personal representative must cease to
be a trustee and the fund will have to satisfy the basic conditions in order to continue as a SMSF -
that is other members must have joined and become trustees.
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 have to apply for an ABN?
Yes. The SMSF will obtain an ABN as part of registering with the ATO and choosing to become a regulated superannuation fund. Cleardocs can assist you with the fund's ABN, TFN & GST registrations.
To obtain an ABN, your fund must have:
- at least 1 trustee;
- a trust deed;
- identifiable members; and
- assets put aside for the benefit of its members.
Auditing a Self-Managed Super Fund in 2009 and checking:
• a Cleardocs Trust Deed (Cleardocs Deed)
against
• the AASB Self Managed Superannuation Fund Trust Deed Audit Planning Checklist
When you are auditing an SMSF which has a Cleardocs Deed, you can use the table below to review the Cleardocs Deed
against the checklist published by the Auditing and Assurance Standards Board in Guidance Statement GS 009 - Auditing Self Managed
Superannuation Funds.
Cross-references to the Cleardocs Deed
In the middle column of the table, we refer you to where the relevant topic is dealt with in the Cleardocs Deed. The reference is to the part
number (letter) and the relevant heading. We cannot provide clause numbers because they vary between deeds depending on, for example, whether
the trustee is a company.
Which version of the Cleardocs Deed works with this checklist?
This checklist works with most versions of the Cleardocs Deed. It works best for Cleardocs Deeds for SMSFs set up, or updated, after 23 April
2007, these are versions 6, 7, 8 and 9 of the Cleardocs SMSF Deed. On that date, Cleardocs updated the Cleardocs Deed for the Simpler
Super (later Better Super) changes.
How to find out which version of the Cleardocs Deed the SMSF has
You can check which version of the Cleardocs Deed a particular fund has by logging on at Cleardocs, then:
- clicking "My documents" — the button is towards the top of the left-hand column;
- finding the SMSF in the lists showing — remember to look in the list for Superannuation Trust (SMSF) and for Update to
SMSF; and
- looking at the small light-blue button after the SMSF's, or client's, etc.name. That button shows the SMSF's deed version number —
for example "Version 7 of 9".
If you click that button, then you can see a summary of the changes made since the relevant fund's deed was set up or last updated.
Glossary
There is a glossary of defined terms at the end of the table.
Any questions?
If you have any questions about this checklist, you can call Cleardocs on 1300 307 343.
- Cleardocs will answer all your administrative queries. These include, queries about its service, website, registering as a user,
payment or feedback. If your question is a legal question, then Cleardocs can arrange for you to use the free legal helpline at Maddocks.
- Maddocks will answer all your questions about the nature, content, use, consequences, drafting and effectiveness of Cleardocs
documents.
This document — and all the legal information in it — is provided by our lawyers at Maddocks.
AASB Ref |
AASB Questions to be addressed in examining SMSF Deed |
Cleardocs Deed Reference — Part number (letter) and clause heading
(We cannot provide clause numbers as they vary between deeds depending on, for example, whether the trustee is a company.)
|
Maddocks Comments |
A |
Establishment and Execution |
A.1 |
Is the date of establishment of the SMSF recorded? |
Schedule 1
Part A
Establishment of the Fund
|
Yes. |
A.2 |
Has the trust deed been:
- Properly executed?
- Signed by all the members who are individual trustees?
- Witnessed?
- Dated?
- Stamped (if required)?
|
- |
You will need to review the relevant deed on a case by case basis. |
A.3 |
Do the rules incorporate SISA, SISR and applicable taxation rules? |
Part A
Establishment of the Fund
|
The Deed establishes the fund under the SISA. |
Part A
Deed Subject to Superannuation Law
|
The Deed requires the fund to be operated so that it qualifies for concessional treatment under the ITAA36 and ITAA97. |
A.4 |
Does the deed outline the core and ancillary purposes of the SMSF? |
Part A
Purpose of the Fund
|
This clause states the SMSF's sole or primary purpose. |
A.5 |
Does the deed require an irrevocable election to be made to be a regulated superannuation fund or a fund subject to the SISA and SISR? |
Part A
Establishment of the Fund
|
The Deed:
- states that the SMSF is an indefinitely continuing SMSF; and
- requires the fund to be operated so that it qualifies for concessional tax treatment under the ITAA36 and ITAA97.
|
A.6 |
Does the deed have a clause which deems the appropriate legislation into or out of the deed to allow the SMSF to remain complying? |
Part A
Deed Subject to Superannuation Law
|
If an obligation that superannuation law imposes on the trustees of the SMSF is not expressed in the Deed, then the Deed regards that
obligation as incorporated into it. |
B |
Amendments to the Deed |
B.1 |
Does the deed allow amendments? |
Part N
Variation
|
The trustee may vary the Deed prospectively or retrospectively with the written consent of the employer-sponsor (if there is one). The
variation may be by oral declaration, written resolution or deed. |
Part N
Limits on Power to Vary
|
The Deed places limitations on the trustee's power to vary the Deed. |
B.2 |
Has the trust deed been amended since the last audit?
If so:
- Has the deed amendment been properly executed?
- Is confirmation of the deed's compliance with SISA and SISR required from the solicitor or other party involved in the amendment?
- Is the amendment signed-off by the current trustees?
- Could the amendments impact the audit?
|
- |
You will need to review the fund's register and all relevant documents on a case by case basis. |
C |
Trustee and Membership |
C.1 |
Does the trust specify who may be a trustee?
Either:
- Two or more individual trustees; or
- A trustee company.
|
Part A
Trustee(s) of the Fund
Schedule 1
|
The initial trustee is named in the Deed. |
C.2 |
Does the deed specifically identify the trustee as either an individual or a corporate entity? |
Part A
Trustee(s) of the Fund
Schedule 1
|
The Deed identifies the name and address (and ACN if applicable) of the trustee. |
C.3 |
Are all individual trustees or directors of the trustee company required to be members? |
Part B
Date of Additional Member's Commencement as Trustee
|
The Deed provides that:
- if the individual members are the trustees, then an additional member becomes trustee of the fund on the date his or her membership
commences; and
- if a company is the trustee, then an additional member becomes director of the trustee of the fund on the date his or her membership
commences provided that the trustee has done everything to appoint the additional member as a director of the trustee.
|
C.4 |
Does the deed permit members to be:
- A non-working spouse?
- A retired person?
- A child?
|
Part D
Member to keep Trustee Informed
Part B
Minor as Member
|
No relevant restrictions on membership. |
C.5 |
Does the deed limit the maximum number of members to 6 members? |
Part B
Conditions must be met
|
Trustee must not accept a person as an additional member if this would mean that the total number of members would be more than 6. |
C.6 |
Is membership open to anyone else? |
Part B
Trustee may appoint Additional Members
|
Trustee may appoint additional members. |
C.7 |
Do the members of the SMSF meet these two definitions?>
- "No member of the SMSF is an employee of another member, unless related." and
- "No trustee receives remuneration for their services to the SMSF."
|
Part B
Conditions must be met
|
Trustee must not accept additional members if the person is in an employment relationship with a member, unless they are related. |
Part M
Trustee may not Charge Fees
|
Trustee must not charge any fees in relation to acting as trustee under the Deed or performing any services in respect of the fund. |
C.8 |
Does the trust deed contain the Trustee Covenants? |
- |
No, and the Deed is not required to as section 52 of the SISA provides that if the governing rules of an SMSF do not contain the trustee
covenants set out in section 52(2), then they will be deemed to contain those covenants. |
D |
Audit and Financial Reports |
D.1 |
Does the trust deed require the appointment of an approved auditor? |
Part M
Audit
|
Auditor must be qualified in accordance with superannuation law. |
D.2 |
Does the trust deed require the trustees to prepare a financial report annually and for it to be audited? |
Part M
Audit
|
Trustee must arrange for annual audit. |
D.3 |
Does the trust deed require the trustees to keep the minutes and records of trustee decisions for at least 10 years and accounting records
and signed financial reports for at least 5 years? |
Part M
Trustee to keep Records, Accounts, Books etc.
|
Trustee must ensure that all records, books, accounts, minutes, reports and other documents are maintained and kept safe in accordance
with superannuation law for the period required by that law:
- SISA section 35B(4): accounting records to be kept for 5 years; and
- SISA section 103: minutes of all meetings and elections to be retained for 10 years.
|
E |
Contributions |
E.1 |
Does the deed contain a general power to accept all contributions permitted by superannuation law? |
Part D
Member Contributions
Employer Contributions
Other Contributions
Contributions etc Not Accepted
|
Under these provisions, the trustee may accept all contributions permitted by superannuation law. |
|
Does the deed allow:
- Concessional contributions, including:
- Employer contributions, including contributions made pursuant to a salary sacrifice agreement?
- Member contributions for which a tax deduction is claimed?
|
Part D
Member Contributions
|
With member's and the participating employer's consent, contributions can be paid by deduction from wages or salary |
|
- Non-concessional contributions, including:
- Member contributions for which no tax deduction is claimed?
- Eligible spouse contributions?
|
Part D
Other Contributions
|
With the consent of the trustee and the member, then any other person — including a spouse of that member — may make
contributions to the fund in respect of that member. |
|
- Contributions in respect of minors?
|
- |
No relevant restrictions in Deed. See "Other contributions" clause (row above) which enables all other forms of allowable
contributions. |
|
- Rollovers and transfers in?
|
Part L
Trustees' Power to Receive Transfer
|
The trustee may take over, or acquire by transfer, from an 'approved benefit arrangement' (which includes another super fund):
- any part of the assets of that arrangement that represents the interest of a participant in that arrangement;
- if that participant has become, or is to become, a member or beneficiary of the fund.
|
|
- Government co-contributions?
|
Part D
Other Contributions
|
With the consent of the trustee and the member, any other person - including any State, Territory or Federal government — may make
contributions to the fund in respect of that member. |
|
- Contribution splitting to a spouse
|
Part D
Contributions-Split Requests"
|
Member may ask the trustee that contributions made to the fund in respect of that member in the previous financial year be:
- transferred to the member's spouse; or
- transferred to the trustee of an approved benefit arrangement of which that member's spouse has joined or is eligible to join.
|
|
- Contributions by members who are under 65 and not working?
|
Part D
Member to keep Trustee Informed
|
No, but member must tell the trustee as soon as practicable if they are aged 65 or older and cease gainful employment. |
|
- Contributions by members who are working part-time and are over 65 and under 75?
|
- |
No relevant restrictions in Deed. |
|
- Mandated contributions to be accepted at any age?
|
- |
No relevant restrictions in Deed. |
|
- Contribution splitting arrangements pursuant to family law matters?
|
Part K
Payment Splits
|
Trustee may vary benefit and make payment to non-member spouse or a transfer-in in respect of the non-member spouse, pursuant to a
splitting agreement or court order under Part VIIIB of the FLA.
|
E.2 |
Does the deed allow for in-specie contributions of assets to be made by members of related parties? |
Part D
Other Contributions
How Contributions to be Made
|
With the consent of the trustee and the member, any other person (including a spouse of that member or another member) may make
contributions to the fund in respect of that member.
A contribution to the fund may be made by the transfer of assets in accordance with superannuation law.
|
E.3 |
Does the deed permit spouse accounts and may employers make contributions to spouse accounts? |
Part C
Contributions Split Requests
|
Member may ask the trustee that contributions to the fund in respect of that member be allotted to the accumulation account of that
member's spouse.
Accommodated by provision for contribution splitting.
|
E.4 |
Does the deed provide a basis for rejecting excess contributions? |
Part D
Other Contributions not Accepted
|
Trustee may refuse to accept excess contributions. |
E.5 |
May excess contributions tax levied on the member be paid by the SMSF, irrespective of preservations rules and conditions of release? |
Part D
Permissible Actions if Certain Contributions Accepted
|
Trustee may:
- release funds to the member where the trustee has received a member release authority; or
- release funds to the Commissioner of Taxation where the trustee has received an ATO release authority.
|
F |
Benefit Payments |
F.1 |
Does the SMSF require compulsory cashing of the members balance at a specific age? |
Part F
Vesting and Compulsory Payment
|
No. Trustee must cash, or commence to cash, a member's benefit entitlement as soon as practicable after the member dies or the entitlement
has vested. |
Part F
When Payments of Preserved Payment Benefits Allowed
|
Trustee may pay a member when the member reaches 65. |
F.2 |
Does the SMSF require a lump sum benefit to be paid in lieu of a pension? |
Part G
Trustee's Right to Commute Pensions Generally
|
On written request by a pensioner, trustee may commute any part of a pension to a lump sum then pay it to the relevant person or their
estate. |
G |
Pensions |
G.1 |
Does the deed expressly allow for payment of pensions by the SMSF, including:
Account based pensions?
|
Part G
Trustee's power to Pay Pension
Trustee Must establish Pension Account
|
Trustee may pay any allowable pension including an accounts based pension. The pension may be of any type permitted by superannuation
law. |
|
Transition to retirement income stream? |
Part G
Trustee's Power to Pay Pension
|
The relevant member or beneficiary may choose the type of pension that is to be paid, including a transition to retirement pension. |
|
Allocated pensions? |
Part G
Pensions
|
No. No longer permitted under super law. |
|
Term allocated or market linked or growth pensions? |
Part G
Pensions
|
No. No longer permitted under super law. |
|
Complying lifetime or fixed term pensions? |
Part G
Pensions
|
No. No longer permitted under super law. |
|
Non-complying lifetime or fixed term pensions? |
Part G
Pensions
|
No. No longer permitted under super law. |
G.2 |
Does the deed allow for commutation of a pension? |
Part G
Trustee's Right to Commute Pensions Generally
|
On written request by a pensioner, or in accordance with superannuation law or the Deed, the trustee may commute any part of a pension to
a lump sum, and pay it to the relevant person or his or her estate.
|
G.3 |
Does the deed allow for the segregation of assets to meet pension requirements? |
Part G
Segregation of Assets and Valuation
|
Trustee may segregate from other assets those assets which are to fund a pension under the Deed. |
G.4 |
Does the deed make reference to nominated beneficiaries? |
Part H
Death benefit payments
|
The Deed provides:
- for binding and non-binding nominations; and
- for death benefit agreements which form part of the Deed and bind the trustee concerning payment of a death benefit.
If the fund has a Cleardocs deed from version 9 or later (which Cleardocs implemented on 4 May 2009), then the Deed also allows a member
to make a Death Benefit Agreement. This Agreement binds the trustee(s) until the member revokes or replaces it.
|
H |
Reserves (If applicable) |
H.1 |
Does the deed provide rules in relation to the establishment, maintenance and operation of SMSF Reserves? |
Part C
Trustee may establish or maintain other accounts or reserves
|
Trustee may establish or maintain any other account for reserve of the fund that the trustee thinks necessary or desirable or that is
required or permitted by super law. |
H.2 |
Does the deed require different or parallel investment strategies for each reserve account? |
Part C
Trustee may Establish or Maintain Other Accounts or Reserves
|
No. However the trustee may adopt such practices as the trustee in its discretion thinks fit. |
I |
Investments |
I.1 |
Does the deed provide powers to the trustees to invest the assets of the SMSF? |
Part E
Authorised Investments
|
Trustee must invest any assets of the fund that are not required for payment of benefits or other amounts under the Deed. |
I.2 |
Does the deed specify specific assets/asset classes that the SMSF may invest in? |
Part E
Authorised Investments
|
This clause lists the types of investment in which the assets may be invested. |
I.3 |
Does the deed prevent investments in, or loans to, related parties? |
Part E
Forbidden Assessments
|
Trustee must not make an investment in the form of a loan or other financial assistance to a member or a relative of a member. |
I.4 |
Does the deed require an investment strategy to be formulated and given effect? |
Part E
Strategy
|
Trustee must formulate one or more investment strategies for the fund.
|
J |
Borrowings
|
J.1 |
Does the deed prohibit borrowings?
|
Part L
Limit on Borrowing
When Borrowing is Allowed (Including "Limited Recourse Borrowing Arrangement")
|
Trustee must not (except as provided for in the Deed and under superannuation law) borrow money or maintain an existing borrowing of
money.
Trustee may borrow or maintain a borrowing of money in three circumstances:
- to enable trustee to pay a surcharge or advance instalment;
- to enable the trustee to settle a transaction to acquire any one or more of the securities listed in section 67(3)(a) of the SIS act;
and
- under an limited recourse borrowing arrangement.
|
J.2
|
Does the deed permit borrowing in specific circumstances, including:
- Temporary borrowings which are required for the payment of member benefits, short term settlement of securities or superannuation
contributions surcharges (no longer levied)?
|
Part L
When Borrowing is Allowed (Including "Limited Recourse Borrowing Arrangement")
|
Trustee may borrow or maintain a borrowing of money:
- to enable trustee to pay a surcharge or advance instalment; and
- to enable the trustee to settle a transaction to acquire any one or more of the securities listed in section 67(3)(a) of the SIS act.
|
|
- Borrowings for limited recourse borrowing arrangement?
|
Part L
When Borrowing is Allowed (Including "Limited Recourse Borrowing Arrangement")
|
Trustee may borrow or maintain borrowing of money under an limited recourse borrowing arrangement.
|
K
|
Winding-Up
|
|
|
K.1
|
Does the deed provide for the winding-up of the SMSF?
|
Part N
Trustee may elect to Wind up Fund
|
Trustee may wind up the fund in the following cases:
- trustee decides to wind up the fund;
- employer-sponsor gives the trustee written notice that it has decided to wind up the fund; and
- there are no longer any members of the fund.
|
Glossary
FLA means the Family Law Act 1975 (Cth).
ITAA36means the Income Tax Assessment Act 1936 (Cth).
ITAA97 means the Income Tax Assessment Act 1997 (Cth).
SISA means the Superannuation Industry (Supervision) Act 1993 (Cth).
SISR means the Superannuation Industry (Supervision) Regulations 1994 (Cth).
Trustee means, in relation to a fund, scheme or trust:
(a) if there is a trustee (within the ordinary meaning of that expression) of the fund, scheme or trust — the trustee, or
(b) in any other case — the person who manages the fund, scheme or trust.
Trustee Covenants means the following trustee covenants contained in section 52 of the SISA:
(a) to act honestly in all matters concerning the entity;
(b) to exercise, in all matters affecting the entity, the same degree of care, skill and diligence as an ordinary prudent person would
exercise in dealing with
property of another for whom the person felt morally bound to provide;
(c) to ensure that the trustee's duties and powers are performed and exercised in the best interests of the beneficiaries;
(d) to keep the money and the other assets of the entity separate from any money and assets, respectively;
(e) not to enter any contract, or do anything else, that would prevent the trustee from, or hinder the trustee in, properly performing or
exercising the trustee's powers;
(f) to formulate and give effect to an investment strategy that has regard to the whole of the circumstances of the entity;
(g) if there are any reserves of the entity, to formulate and give effect to a strategy for their prudential management, consistent with the
entity's investment strategy and its capacity to discharge its liabilities as and when they fall due; and
(h) to allow a beneficiary access to any prescribed information or any prescribed documents.
What does an SMSF trustee(s) need to do if a member or one of the beneficiaries changes their name due to marriage?
The trustee of the SMSF will need to record the name change in trustee minutes. However, there is no need to do a Deed of Variation or
amendment to the SMSF's deed.
Further, if you have not recently updated your SMSF's deed, then you may wish to order a SMSF Update with Cleardocs. When completing the
interface, enter the person's current legal name. There is no provision to include previous names in the Cleardocs' interface.
How do I change the name of an SMSF?
You can change the name of your SMSF whenever you like, and as many times as you like. It will generally require you to:
- vary the fund's trust deed — read more about this here; and
- notify the ATO.
How do I remove a member of an SMSF?
Superannuation law permits removal of a member of an SMSF.
If your SMSF has a Cleardocs trust deed: A person's membership ceases if certain conditions are met, for instance, that member's
benefits are paid out of the fund, assets are transferred out of the fund or benefits to the member cease to be payable. A resolution of
directors/trustees is not required to remove the member, although they may pass resolutions reflecting that certain conditions have been met
and that the person's membership will automatically cease.
If your SMSF does not have a Cleardocs trust deed: You will need to review the terms of your trust deed to determine whether (and in
what circumstances), a member ceases to be a member of the fund.
You can change trustees of your SMSF here.
Can a minor SMSF member enter into a death benefit agreement or nomination?
Cleardocs Death Benefit Agreements and Death Benefit Nominations are only suitable for adult SMSF members. They are not suitable for minor SMSF members younger than 18 years.
While superannuation law does not prevent minor SMSF members from entering into death benefit agreements or nominations, any agreement or nomination by an SMSF member younger than 18 years is not binding, because the member is a "minor".
If you wish to arrange for a minor SMSF member to enter into a death benefit agreement or nomination, you should obtain legal advice about
the effectiveness of these arrangements. To discuss the member's options, please call us on 1300 307 353 and we will arrange for you to
speak with the relevant lawyer at Maddocks, for free.
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).