Update SMSF Deed with 1 to 6 members
You are building the update SMSF Deed. It updates your Self-Managed Superannuation Fund for:
1. Trustees (one company or up to 6 trustees)
2. Members (one to 6)
3. Deed (full replacement)
Legal Consolidated Barristers & Solicitors automatically puts in all Deed updates. These are required for the:
1. new Superannuation legislation; and
2. the budget changes.
Checklist to see if your SMSF Deed is up-to-date
Our Self Managed Super Fund deed update complies with the 19 main changes to SMSF Deeds. This is under the Budget:
- Binding death benefit nominations (BDBNs) given the High Court’s landmark decision in Hill v Zuda  HCA 21
- Contributions given the removal of the ‘Work Test’ for those between 67 and 75 years old from 1 July 2022
- Corporate collective investment vehicles, cryptocurrency, non-fungible tokens and blockchain technology
- Internally ‘rollback’ pensions to accumulation for up to 6 members
- Segregate assets between accumulation and pension phases
- Reject contributions
- Refund contributions;
- Deal with excess transfer balance tax and excess non-concessional contributions
- Allow income streams and Account-Based Pension (grandfathered)
- Specify guardians for incapacity and death
- Identify the Power of Attorney when living overseas for more than 2 years
- Resettle pensions with flexible timing without mingling with an accumulation account
- Allow reversionary beneficiary nominations
- Provide CGT relief
- Deal with segregated and unsegregated assets
- Cease or keep Transition to Retirement Income Streams
- Calculate member balances, across different funds
- Calculate internal pension rollbacks to accumulation
- Allows for an unlimited number of members (currently the law allows 6 members)
What do I get in the Update SMSF Deed?
Build this Update SMSF Deed. You get:
1. Deed of Variation – updates your SMSF Deed, the Trustees and the Members (up to 6 members)
2. Binding Death Benefit Agreement
3. Minutes for the Trustee to accept the Deed of Variation
4. Product Disclosure Statement – fully updated
5. Letter on our law firm’s letterhead confirming the above. Signed by a partner of the law firm
Other documents you can build on our website:
Why update SMSF Deed?
The Superannuation laws have changed. An old SMSF Deed is dangerous. It contains irrelevant clauses. This increases your risk of exercising a power you’re no longer allowed. This results in the loss of tax concessions.
Over the last 4 years, there have been 13 significant changes to superannuation legislation. These include:
* change concessional contribution cap
* Insurance – new satisfying conditions
* pension limits and changed payout rules
* Excess concessional contributions rules
* Investment strategy should now be reviewed annually
* Trustees must report assets at market value using new rules
* remuneration for certain non-trustee duties
* up to 6 members
Trustee vs a Member?
The Trustee looks after the Self-Managed Superannuation Fund. The Member is the lucky person who will, one day, get the assets in the SMSF. The Member gets the assets after retirement.
Usually, the Trustees and Members are the same persons. The law requires that if you are one of the members then you must also be a trustee as well.
E.g. James and Jenny are the Members. They must, by law, also both be the Trustees.
An exception to this rule is if you have a company as your Trustee. This is called a ‘Corporate Trustee’. In that instance, the only Trustee, by law, must be your company. The only directors of the corporate trustee must be the members.
E.g. James and Jenny are the members. They have a company as the trustee. Both James and Jenny must, by law, be the only directors of the company.
An SMSF can have up to 6 members. They must all be trustees as well. But some States of Australia only allow for 4 trustees of a trust. (And an SMSF is a trust.) So if you have 5 or 6 members you should consider a company as trustee of the SMSF. In fact, most accountants recommend that an SMSF always have a company as trustee of the SMSF. This is irrespective of how many members in the SMSF. I think they are correct.
Trustee or Member dead, bankrupt or of unsound mind?
This Deed of Variation updates your Trustees and Members, even if they are dead or otherwise incapacitated.
Does the SMSF Deed update mention AASB15 “Revenue from Contracts with Customers”?
As of 1 July 2021, non-listed companies are no longer allowed to prepare Special Purpose Financial Statements (SPFs). Instead, they prepare arduous General Purpose Financial Statements (GPFS). Small proprietary companies where 5% of their shareholders request GPFS to be prepared are included in the definition of companies that comply with this requirement.
This requirement also applies to SMSF, Trusts and Partnerships, but only where the founding Deed makes mention of AASB15 in its definition of income.
Happily, Legal Consolidated documents do not mention AASB15 in the definition of income.
Further, no Legal Consolidated documents require compliance with the arduous AASB15.
Does the Legal Consolidated SMSF Deed update mention previous deed updates?
Q: Professor Davies, over the years my SMSF Deed has been updated 8 times. I am about to do the SMSF deed’s ninth update. Why do you not mention the 8 updates in your Deed of Variation of an SMSF? I notice that your question and answers only require me to identify the SMSF Deed that first started the super fund.
A: You are correct. There is no reference to any previous variations. When you build the SMSF Deed update, on our law firm’s website, there are no questions on any updated SMSF deeds. We only identify the original SMSF deed that first established your Self-Managed Super Fund. We intentionally do not refer to any specific deeds of variations.
There is no legal requirement to refer to other updates. It only adds complexity, especially if you lose one of those updates.
How do I know that the SMSF Deed allows for this Deed of Variation?
Q: Do you need to review previous SMSF deeds and any variations? This is to see if the SMSF can be so varied?
A: The SIS legislation controls the Superannuation including SMSF. So most of the rules are in the SIS Legislation, not the SMSF Deed.
Secondly, the SMSF cannot ’embed’ any rules which prohibit the making of amendments or Deed of Variations. This is provided the SMSF updates are done via a ‘deed’. Only law firms can prepare deeds. We are a law firm and all our SMSF variations are done via a deed.
To show the breadth of what you can do to an SMSF without triggering a resettlement you can even replace a lost SMSF deed.
Are tax benefits and old rules protected when I update my SMSF Deed?
Yes. Tax benefits are grandfathered and protected in all our SMSF Deed updates.
Investing in Cryptocurrency using SMSF
Legal Consolidated SMSF deeds, updates and investment strategy are fully compliant with the new Cryptocurrency rules see here.
How do I find the ‘name’ of my Self Managed Superannuation Fund? This is to update the SMSF Deed?
As per the screenshot below, read the hints on the right-hand side of the question. The online building process is designed to educate and empower you about your SMSF.
Do I put in the SMSF’s old address or new address? This is when I am updating the SMSF.
See the above screenshot. To the right are many hints. They empower you. They help you take control of your SMSF.
Use the current address of your SMSF. (Do not use the old address in the original SMSF Deed or any of the previous SMSF updates.)
Can I get legal advice as I update my SMSF Deed?
You are building your SMSF Deed update on an Australian law firm’s website. Telephone us anytime to get legal advice.
But, try out the building process first. We have been updating SMSFs since 1988. Every time we are asked a unique question we add another hint. I know you are special and unique. But try building the SMSF Complete Update of the deed first. And then telephone us for further help.
Please read the article written by Professor Bret Davies titled Family Trusts and streaming: life after Bamford.