• ASIC fee, Certificate and ACN
• Constitution with SMSF Control Architecture
• Minutes, consents, registers and share certificates
• Law firm cover letter and banking certificate
Your Self-Managed Super Fund (SMSF) needs a trustee to hold its assets and manage the fund. The SMSF’s bank account, shares and property are in the name of the SMSF Trustee. Your SMSF Deed sets out the rules that the Trustee must follow.
Members have two choices for the SMSF trustee. Either the members themselves act as the trustees. Or, you incorporate a special type of company to act as trustee. This is called a corporate trustee. If you choose a company as trustee, the members must be the company's directors.
We have provided SMSF companies since 1988. More than 92% of SMSFs built at Legal Consolidated use a company as trustee. Consider what happens if a member dies.
Assume you and your spouse are the human trustees. Your SMSF’s land, shares and bank accounts sit in your names as trustees. Your spouse dies. You must transfer every asset held in your names.
You must quickly find someone to act as your co-trustee. You and your accountant must then arrange to transfer all SMSF assets into your name and the new trustee’s name. The assets remain in the same SMSF, but the names holding them change.
Transferring assets is expensive and complex. You face land title transfers, bank forms, share registry requirements and checks. You need Statutory Declarations and a Grant of Probate. There are hurdles to jump to escape stamp duty and Capital Gains Tax. Your advisers must check the stamp duty requirements and prepare the documents correctly. That costs time and money.
Now consider where a company is trustee of your SMSF. The company holds the SMSF assets in its name. The members no longer own the SMSF assets. Now, if your spouse dies, the company continues to hold the land, shares, and bank accounts.
You simply change the SMSF company's directors. There are no transfers.
As a national taxation and superannuation law firm, Legal Consolidated is one of Australia’s largest providers of Special Purpose Companies.
Our Special Purpose Company satisfies ASIC’s requirements for special purpose status under the Corporations legislation. Our unique SMSF Control Architecture sets out who controls the company, how directors make decisions and what happens when a director dies or loses capacity.
Companies pay ASIC an annual review fee. The Legal Consolidated Special Purpose Company gives you a significant discount on that fee while your company retains its special purpose status. The requirements appear in reg 3 of the Corporations (Review Fees) Regulations 2003 (Cth).
Most websites that incorporate companies are not law firms. Some pretend to be law firms. ASIC merely registers your company and issues its Australian Company Number (ACN). ASIC does not read your new company Constitution.
The ASIC registration certificate does not tell you who takes control when a director dies. It does not explain how the remaining directors resolve a disagreement. Those answers sit inside your Constitution.
When you and your accountant face an ATO audit, the quality of your documents matters. When your family disputes control, the drafting matters. Your accountant helps establish the right structure. Legal Consolidated supplies the legal machinery that supports it.
Yes. Your Special Purpose SMSF Company must have its own Constitution. An ordinary company might operate without one and rely on the government’s default “replaceable rules”. Those default rules alone do not satisfy the Special Purpose Company requirements.
Your Constitution also governs the company’s internal affairs. It sets out who appoints and removes directors, how they make decisions and how company shares pass after death. These rules affect who controls the company holding your retirement savings.
Read our explanation of Company Constitutions versus Replaceable Rules before relying on the government’s default rules.
More than 4,600 accountants, financial planners and lawyers build legal documents on our website. They report what happens inside ATO audits—the arguments, tactics and pressure points. They also encounter the problems families face when someone dies, loses capacity or disputes control.
Our specialist lawyers draw on that experience. We track bankruptcy cases, trust disputes, family law judgments and estate litigation. We turn those lessons into practical drafting for you and your advisers.
That work shapes Legal Consolidated SMSF Control Architecture. Your company’s appointment, ownership and decision rules work together as a carefully crafted mechanism.
The Legal Consolidated Special Purpose Company addresses what happens when a member who is also a director dies, loses capacity or faces a family breakdown. Your family still needs someone with authority to act. Your accountant needs valid instructions, and the bank needs proof of who represents the company.
Our Constitution addresses three questions: who appoints the next director, who inherits the company shares and who has authority to keep decisions moving? Plan those answers while you still control the decisions.
Your daughter helps with your affairs. Your family expects her to take over when you cannot. That expectation does not appoint her as a director, and your Enduring Power of Attorney does not automatically give her that position.
Legal Consolidated’s Next Director Pathway sets out how directors are appointed, how vacancies are filled and what remaining directors do when their numbers fall below the required minimum. It gives your family and advisers a process to follow.
The company’s appointment rules work alongside the SMSF requirements in s 17A of the Superannuation Industry (Supervision) Act 1993 (Cth). Your cover letter and the building process explain the requirements relevant to your answers.
Your executor deals with your estate after you die. That does not automatically appoint them as an SMSF trustee or a director of your trustee company.
In Ioppolo v Conti [2015] WASCA 45, a deceased member’s children argued that her surviving husband had to appoint an executor as a trustee. The Court rejected that argument. The law permitted an executor’s appointment in the circumstances; it did not require it.
Your Will alone does not settle who takes control of your SMSF. Bring your company Constitution, SMSF Deed, Will and Enduring Power of Attorney together with your advisers.
Your company has shareholders. Their shares carry rights, including votes that affect who controls the company. When you die, your Will deals with company shares that form part of your estate.
Legal Consolidated’s Generational Ownership Pathway addresses share entitlements following death or incapacity. It sets out the process for recognising and registering the person entitled or their nominee. Your estate planning lawyer has provisions to coordinate with your Will.
Think about who receives those shares. Do they understand your plans for your super? Do your ownership arrangements support the people you want making decisions?
No. Receiving company shares, becoming a director and receiving your super are three different things. Naming your children in your Will does not itself direct the SMSF trustee to pay them your super.
Your SMSF needs its own valid death benefit arrangements. In Hill v Zuda Pty Ltd [2022] HCA 21, a dispute over an SMSF death benefit direction reached the High Court. The Court confirmed that reg 6.17A of the Superannuation Industry (Supervision) Regulations 1994 (Cth) did not apply to SMSFs.
Your fund’s own rules matter. Your company Constitution addresses who acts for the trustee; your SMSF Deed and death benefit arrangements address payment of your super. Plan both who makes the decisions and who receives the money.
In Wooster v Morris [2013] VSC 594, a father nominated his two daughters to receive his super. His widow controlled the trustee company, and a dispute followed. The proceedings resulted in judgment against the trustee company and the widow personally.
Your death benefit directions and company control arrangements need attention together. Clear payment directions matter, and so does the authority of the people acting for the trustee. Legal Consolidated drafts your company rules with those connections in mind.
The directors agree. You need to record the decision and act. Our Constitution allows all directors entitled to vote to sign a written resolution without holding a meeting.
Your initial resolutions address multiple directors or a sole director. They refer to s 248A or s 248B of the Corporations Act 2001 (Cth), as applicable. You receive records of the decisions establishing your company and its authority to act.
Your price includes the ASIC incorporation fee and 18 document and record categories, tailored to your answers:
Your registers address s 169, s 170 and s 171 of the Corporations Act 2001 (Cth). Your banking certificate identifies the company and its special purpose, supported by the company records and account authority resolution.
This package establishes your SMSF trustee company. You build the SMSF separately.
Yes.
Already have an SMSF with human trustees? Build your company first, then build your SMSF Update and Confirmation Deed to appoint it as trustee. You and your accountant then attend to the fund’s registrations and transfer the assets into the company’s name as trustee.
No. Its sole purpose is to act as trustee of a regulated superannuation fund. Keep your business and family trust outside this company.
Your SMSF’s Custodian Bare Trust also needs a separate trustee. The SMSF trustee and the Custodian Bare Trust trustee perform different jobs. Build the right company for each role.
Start building for free. The hints explain the questions, and the training videos guide you through the process. Contact Legal Consolidated for legal help answering the building questions.
We oversee incorporation with ASIC. If ASIC questions your proposed company name, we contact you and help resolve the issue. We speak or meet with ASIC as required.
You deal with the law firm preparing your company documents. Your cover letter explains what you receive and what to do next. Keep it with your company records so you and your advisers know whom to contact.
Your trustee company is one part of your SMSF. Choose the documents you need for the fund, its investments and your plans for what happens when you die.
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