A self managed super fund (SMSF) is established for the sole purpose of providing benefits to the members of the fund in retirement. An SMSF needs a Trustee, that can be either be the members of the fund as individuals or a corporate trustee controlled by the members, that makes investment decisions and implements the strategy of the fund, for the benefit of the members.
An SMSF is highly regulated and often requires the assistance of SMSF specialsts to ensure ongoing compliance. A Patricia Holdings SMSF Deed is drafted by a Trust Law specialist and is drafted to comply with the current legislation to ensure the fund is established properly.
What is included?
- A4 binder (white or grey)
- 2 bound copies of trust
- 1 hole punched copy of trust
- Instruction sheet
- Notes for the assistance of the Trustee
- Product Disclosure Statement
- Suggested Investment Strategy
- Binding Death Benefit Nomination form
PDF email delivery
Full Service Courier delivery
For email delivery orders, the Trust Deed and related documentation will be emailed to you within 15 minutes of placing your order. If you have ordered an SMSF and Trustee company package, we need to register the Trustee company before establishing the Trust which means email delivery may take up to a hour for both the Trustee company register and the Trust deed.
We are able to deliver our full service couriered product to the Sydney metropolitan area within about 4 hours of receiving an order. Orders received before 12 midday are usually delivered the same day. Documents being sent to Brisbane and Melbourne will be sent by overnight courier for next day delivery (order must be received by 4pm for delivery the next day) and within a couple of days to Perth and regional areas.
What is a Superannuation Trust?
A Superannuation Trust is a Self-Managed Superannuation Fund (SMSF).
An SMSF is a trust structure that provides benefits to its Members upon retirement. The main difference between an SMSF and other super funds is that the Members are also the Trustees of the fund giving them a high level of control when it comes to tailoring the fund to meet their individual needs.
SMSFs will have between one and four Members.
The Trustee(s) will either be all Members of the SMSF, or a Corporate Trustee whereby all Members of the SMSF are Directors.
If there is only one member of the fund then that member plus another person unrelated to the Member will be Trustees unless that second person is the employer of the member then they should be related.
For a single Member SMSF with a Corporate Trustee, either the single Member will be the Sole Director of the Company or it will be a two Director company with the Member being one and an unrelated second person being the other (unless they are the employee of the Member as above).
How is a binding death benefit nomination updated?
The Patricia Holdings Trust deed provides that the Nominations can be renewed every 3 years but do not have to be renewed. It also provides that there can be an agreement between the Trustee and the Members (that binds the Trustee) setting out how the members benefits are to be distributed if the member dies.
When should a Superannuation Trust deed be updated?
A Superannuation Trust deed should be updated whenever there is a significant change in the law. As a general rule of thumb the Trustees of a Superannuation Fund should consider reviewing the Trust deed every two years and should update at least every four years. The Funds Auditor may provide some guidance regarding this.
How is the name of a Superannuation Fund changed?
Patricia Holdings can help change the name of your SMSF. The Trustee elects to change the name of the Fund and then confirms that election in writing. A Trustee must ensure that if a Fund changes its name that every person who has business dealings with the Fund and every Nominated Beneficiary of the Fund are notified of the change of name. We can provide all the paperwork required for $143 delivered as a PDF or $176 for printed and couriered documents.
Does a Superannuation Trust have to have a Trustee?
Yes, every Superannuation Trust must have a Trustee. This is because the law requires that for a Trust (an SMSF is a Trust) to exist there must firstly be some Trust property and secondly, it is the Trustee (or Trustees) who hold the Trust property on Trust for a Beneficiary or Beneficiaries (there must be a separation between the legal and equitable ownership). A Trust is not considered a legal entity.
In the case of Superannuation Trust the Superannuation Laws requires that a Superannuation Trust must have a Trustee.
All the Members must be Trustees if the Trustees are individuals (except in the case of Members who are not eligible to be Trustees i.e. minors, bankrupt, unsound mind, then an authorised representative would be appointed) and if the Trustee is a company then all of the Members must be the directors of the Trustee Company where eligible.
If there is only one member then there must be 2 Trustees if the Trustees are individuals. The Trustee who is not the member can be a relative of the member only if they are the employer of the Member or a non-relative of the member if they are not their employer.
If there is only one member and the Trustee is a company then the Trustee company can be a single member company of which the member is the sole director or it can be a two Director company whereby the second Director is a relative of the member only if they are the employer of the Member or a non-relative of the member if they are not their employer.
How is the State of Jurisdiction of a Superannuation Trust Changed?
The State of Jurisdiction of a Trust (an SMSF is a Trust) is determined by where the Trust conducts its business. As soon as a Trust (the Trust is made up of the Trust assets) is moved from one State to the other then the jurisdiction of the Trust deed moves to the new State.
Superannuation Trusts are governed by Commonwealth Law so the law governing Superannuation Trusts is the same in every State.
How is a Superannuation Trust wound up?
A Trustee winds up a Superannuation Trust by:
- making a Declaration (in writing) that the Trust is to vest (that is the Trust ends and the Trust assets be distributed to the Beneficiaries);
- collecting in all of the Trust assets and converting them into cash (unless the Trustee proposes to make an in specie distribution);
- all debts of the Trust must be paid and all tax must be paid;
- The assets (or cash) are then distributed amongst the Members or Members dependants according to the members share in the Superannuation Trust;
- notice is then given to the Taxation Department that the Trust has ceased to exist.
If any Member is under the age (retirement after age 55, permanent disability, death etc) when the Superannuation Trust can make payments to the Member then that particular Members share must be paid to another complying Superannuation Fund.
Who can be a Trustee of a Superannuation Trust deed?
Under section 17 of the SIS Act (and as set out in the definitions section of the Patricia Holdings Superannuation Trust deed) the Members must be the Trustees, or if the Trustee is a Company then the Directors of the Trustee Company must be the same persons as the members.
If there is only one Member of the Superannuation Fund then that Member plus another person unrelated to the Member will be Trustees, unless that second person is the employer of the member then they should be related. For a single Member SMSF with a Corporate Trustee, either the single Member will be the Sole Director of the Company or it will be a two Director company with the Member being one and an unrelated second person being the other (unless they are the employee of the Member as above).
Minors (a person under 18) cannot be Trustees or Directors of a Trustee Company. But a Legal Personal Representative of a minor can represent the minor.
Bankrupted and disqualified persons cannot be Trustees' or Directors of a Trustee Company.
How and when can payments be made from my SMSF to its Members?
You can access your super when you reach your preservation age. This is the minimum age, set by law, which your super must be preserved until and is currently between 55 and 60. Once you reach this age, you can access your super as long as you are permanently retired (or reached age 65). If you haven’t permanently retired, you can still access part of your super through a transition to retirement pension.
When the Trustees of the Superannuation Fund are individuals then payments from the Superannuation Fund to its Members must be made in the form of a pension. That restriction does not apply in the case of a Corporate Trustee. In this instance, payments can be made in lump sum or pension.
Can the Trustee of a Bare Trust used for Limited Recourse Borrowing Arrangements be the same as the Trustee of the related Superannuation Trust?
If the trustee is a corporate trustee then the answer is no. The Superannuation Industry Supervision Act is specific, under section 67 A & B that the Trustee must be a different legal entity. The Trustee can be an individual, a group of individuals or a Company. Directors of the Corporate Trustee of the Bare Trust can be the same as the members of the Fund.
It is in our experience that most banks will not lend to a Bare Trust with individual Trustees.
How long does a Superannuation Trust last?
Under a specific provision in the Superannuation Industry Supervision Act, a Superannuation Trust is not limited to maximum life of 80 years, and must be indefinitely continuing.
What happens when all of the Members of a Self-Managed Superannuation Fund have died?
When all of the Members of an SMSF have died the assets of the SMSF must be distributed amongst the dependants of the deceased Members or paid to the personal legal representative of the deceased Members to be distributed in accordance with the Will of the deceased Members. If a Member has given the Trustee a direction in writing either in the form of a binding death benefit nomination or in some other form then the Trustee may distribute the Member's share of the fund in accordance with that direction.
Care should be taken when distributing a deceased Member's share of a SMSF because there are different taxation consequences attached to different distributions.
Can death benefit nominations be non-binding?
Yes, the law was changed in 2008 to allow non-binding death benefit nominations, and these are permitted by the Patricia Holdings deed. A Death Benefit Nomination form will be provided with any deed purchase.
How to Order
Order by email
- Download Order Form – SMSF Trust Deed.pdf