Written by Scott Hay-Bartlem, Partner, Cooper Grace Ward, SMSF Specialist (FSSA)
The trust deed of is one of the most important documents for self-managed superannuation fund, so it is very important your trust deed is the right one for you.
So how do you know if your SMSF’s trust deed works for you, and whether it should be updated?
The simple answer is that for most people, you won’t be able to tell, so you should get advice to ensure your trust deed will let you do what you want and need to do.
There are a few key focus areas:
- Can you pay the modern types of pensions from your SMSF.
- Does it support your estate planning strategy, and in particular allow for reversionary nominations form your pensions, binding death benefit nominations or agreements, and death benefit guardians if that is that you need.
- Are your investments allowed, particularly if you are borrowing in your SMSF (LRBA), or investing in trusts, property developments, derivatives or cryptocurrency.
- Do the decision making processes work, especially if you have more than 1 or 2 members.
One important date is 1 July 2007, as the pension rules changed significantly. If you have a trust deed from before that, it is unlikely you can pay an account based pension from your SMSF and you should update your SMSF trust deed.
However, like most things with SMSFs, it is important for trustees to seek advice from appropriately qualified advisers as even very recent trust deeds do not always properly cater for the things trustees and members of SMSFs want to do,
Disclaimer: The information provided does not constitute financial product advice. The information is of a general nature only and does not take into account your individual objectives, financial situation or needs. It should not be used, relied upon, or treated as a substitute for specific professional advice. We recommend that you obtain your own independent professional advice before making any decision in relation to your particular requirements or circumstances.
We encourage you to use the SMSF Association’s ‘Find a Specialist‘ tool, to locate an SMSF Specialist in your area if you have any questions about your SMSF.
Scott Hay-Bartlem, Partner, Cooper Grace Ward, FSSA - Guest Contributor
Scott is a partner in Brisbane law firm Cooper Grace Ward.
He and his team specialise in assisting clients and their other advisers including accountants and financial planners with tax and superannuation (particularly SMSFs) advice; estate planning, administration and disputes; family businesses, business structuring; business succession arrangements; asset protection and restructuring. Scott has a particular interest in how these areas intersect with self-managed superannuation funds and the impact of and on these structures.
He is Chair of the SMSF Association and a SMSF Specialist Advisor™ with the SMSF Association, a Chartered Tax Adviser, a member of the Society of Trust and Estate practitioners. Scott chairs the Cooper Grace Ward Diversity and Inclusion Group and its ARCUS sub-group, and is the leader of the firm’s Private Client Commercial group.
Scott been selected by his peers for inclusion in the 16th Edition of Best Lawyers in Australia in the practice areas of: Superannuation Law, Trusts and Estates, Wealth Management / Succession Planning Practice and Commercial Law. He was named the 2016 Brisbane Wealth Management/Succession Planning practice ‘Lawyer of the Year’ and the Superannuation ‘Lawyer of the Year’ for 2019, 2022 and 2024.
Scott has been listed in Doyle’s Guide for Queensland Estate Planning lawyers as a pre-eminent practitioner
He has a Bachelor of Laws (Hons) and a Bachelor of Business (Accy) from the Queensland University of Technology. Scott has also completed the Certificate of Superannuation Management and the Diploma of Superannuation Management run through ASFA and Macquarie University, and the Foundation Diploma of Financial Planning.