Change of SMSF Trustee
Is the Change SMSF Trustee package suitable for an SMSF that has become a sole member/sole trustee fund because the second member/trustee has died and needs to be replaced?
No, the Change of Trustee package can only deal with a straight change of trustee. It cannot rectify a structural issue with the SMSF. As a result, you cannot use the Change of Trustee package to appoint a new trustee under these circumstances.
In this instance, as the SMSF is a two member fund, the solution is for the remaining trustee to either:
- appoint the deceased's legal personal representative as the second trustee for the time being, or
- immediately appoint a person who will be the ongoing non-member trustee.
To do either of these things, you will need an alternative Deed of Variation. Maddocks can provide you with a quote to prepare these documents. Please call us to arrange a quote from Maddocks.
Is the Change SMSF Trustee package suitable for when the SMSF has a member who is under 18 years old?
The law allows an SMSF to have a member who is under 18 years old. Specifically, where there is a member under 18 years old who does not have a legal personal representative:
- a parent or guardian of the member needs to be a trustee of the fund in place of the member; or
- if there is a corporate trustee, a parent or guardian of the member needs to be a director of the corporate trustee in place of the member.
However, please note that the Cleardocs Change of Trustee product can only be used when the SMSF has member(s) who are over 18 years old.
Should I use the Change SMSF Trustee package when a fund member turns 18?
A person under 18 years old can be a member of an SMSF, but not a trustee. Superannuation law allows a parent or guardian of a member who is under 18 years old to be that member's representative as trustee. When the member turns 18 years old, that member must be:
- if the fund has individual trustees, appointed as a trustee and his or her parent or guardian must retire; or
- if the fund has a company as trustee, appointed as a director of that company trustee.
You can use a Cleardocs Change SMSF Trustee package to retire a parent or guardian representative trustee and appoint the now 18 year old member as a trustee.
You do not need to use the Cleardocs Change SMSF Trustee package to appoint the 18 year old member as a director of the corporate trustee. The appointment as director can occur in accordance with that company's Constitution. However, the 18 year old member must:
- sign a form consenting to his or her appointment as a director of the company; and
- complete the ATO trustee declaration form.
The 18 year old member should also read the Australian Taxation Office's self-managed super funds — key messages for trustees (NAT 71128)".
Once the new director has been appointed, an existing director must complete an ASIC Form 484 to notify ASIC of the appointment of the new director.
In all cases, once the changes have taken place to the fund's trustees, the trustees must complete and sign the ATO change of details form for superannuation fund entities. This form is provided with the Cleardocs Change SMSF Trustee packages.
 Section 17A(3)(c) of the Superannuation Industry (Supervision) Act 1993.