Update to SMSF


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:

  1. Arrange for all parties to the deed to conduct a thorough search for the deed;
  2. Contact the person (maybe a solicitor or accountant, or their firm) who arranged the deed to see if they have a copy;
  3. 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
  4. 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.