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Meg on SMSFs: Why a trust deed is still important

In a monthly column to assist trustees, specialist Meg Heffron explores major issues on managing your SMSF.

These days, it is usually easy to change an SMSF trust deed. The trustees agree to make a change, most accounting firms have a regular supplier they use to do it and the work can be done reasonably quickly at fairly modest fees. And most people who use the same supplier will have the same trust deed – it’s rare to find them tailored to the individual fund.

So it’s tempting to think that the trust deed is not really that important – the logic being that “if we don’t like what we have, we can just change it really easily”.

While part of that sentence is true – it’s generally easy to change – that doesn’t mean it’s not a critical document. And while SMSF trust deeds might be mostly generic, there are still differences that mean some important questions might be answered quite differently by someone with Deed A vs Deed B.

Take this example

This became clear to me recently when I received a question about a binding death benefit nomination for a member who had recently died – let’s call them Xanthe.

In this case, the binding death benefit nomination left Xanthe’s super to be divided equally between three different people (Annie, Bertie and Clarice). Let’s assume all were valid recipients when the nomination was made – they were “death benefit dependants” for super law purposes. Super death benefits can only be paid to “dependants” (which, for most people, is their spouse and children of any age) or the deceased’s estate. The only time the money can be paid to another individual is if there are no dependants and no estate is formed. So in this case, let’s assume that the three beneficiaries were Xanthe’s children – all dependants for super purposes.

The challenge in this case was that Annie died several years ago – in fact, before Xanthe. What happens? Does it all go to Bertie and Clarice? Or does Annie’s share now go to Annie’s estate? Or is the whole death benefit nomination invalid? Or… is there another option entirely?

One part of the question is reasonably straight forward. In Xanthe’s case, she had some death benefit dependants. So the super can only be paid to Xanthe’s remaining dependants or estate. While Annie was a valid recipient of Xanthe’s super while she was alive, that doesn’t extend to Annie’s estate.

So in this case, one thing’s for sure: nothing is going to Annie’s estate. And it probably won’t be able to go to Annie’s spouse or children either because in most cases they won’t be classified as Xanthe’s “dependants” (for example, grandchildren aren’t valid recipients unless they were also – say - financially dependent on Xanthe and therefore another of her dependants).

What happens then? The answer really does depend on the trust deed. And in this case, Xanthe has already died – it’s probably too late to change the trust deed. That would definitely invite a challenge by anyone disappointed in the result.

Some trust deeds say that whenever any part of a binding death benefit nomination can’t be fulfilled, the whole nomination is disregarded. If that was the case in Xanthe’s fund, the rules would essentially revert back to normal super rules when members don’t make binding death benefit nominations at all. The trustee decides who gets the money. Of course, they would still be subject to the usual rules about only paying the money to permitted beneficiaries. That would include Xanthe’s estate (still not Annie’s) and dependants such as Bertie, Clarice and any other children or Xanthe’s spouse. This could get particularly tricky if Xanthe’s new spouse was the trustee of the SMSF and decided to pay all of the super to themselves!

Other trust deeds take the exact opposite view – they provide specific instructions for what happens when just one part of a nomination is invalid. For example, the deed might provide that the trustee must treat the remainder of the nomination as valid – in this case, paying Bertie and Clarice one third each.

What happens to the final third will also be determined by the trust deed. The deed might hand that decision to the trustee, or it might specify that it is divided proportionally between the “valid” beneficiaries (meaning in this case that Bertie and Clarice would end up with 50% each overall).

Alternatively, some binding death benefit nominations address this directly. Xanthe’s nomination might specify that if any of her beneficiaries pre-decease her, their “share” is to be paid to her (Xanthe’s) estate. Of course, Xanthe would also have needed to think about this when preparing a Will. For example, if the money was to go to Annie’s children, Xanthe would need to ensure that the Will included specific instructions for any super death benefits that were paid to the estate because a beneficiary had pre-deceased her.

Other issues

As you can see, it’s complicated.

And even this assumes the trust deed and the binding death benefit nominations make the situation clear. Many older SMSF deeds don’t address this at all – meaning it’s anyone’s guess. Lawyers, courts and all manner of other expensive people may need to get involved.

This is just one example where the trust deed is critical but there are others.

For example, what happens for those who have reversionary pensions (pensions deliberately set up to continue to a spouse) but also a binding death benefit nomination that leaves everything to their estate? The two sets of instructions contradict each other. Which one “wins”? It will depend on the deed.

And what about those who set up pensions and then want to change something about that income stream (for example, add, change or remove a reversionary beneficiary)? Can they do it without stopping the pension and starting a new one? Again, it depends on the deed.

All up, even though SMSF trust deeds are often generic these days and almost always easy to change, they’re still vital. They’re definitely not all the same so it’s important for SMSF trustees to know what they’ve got.

 

Meg Heffron is the Managing Director of Heffron SMSF Solutions, a sponsor of Firstlinks. This is general information only and it does not constitute any recommendation or advice. It does not consider any personal circumstances and is based on an understanding of relevant rules and legislation at the time of writing.

For more articles and papers from Heffron, please click here.

 

12 Comments
Orsova
January 15, 2024

"These days, it is usually easy to change an SMSF trust deed. The trustees agree to make a change, most accounting firms have a regular supplier they use to do it and the work can be done reasonably quickly at fairly modest fees. And most people who use the same supplier will have the same trust deed – it’s rare to find them tailored to the individual fund."

It's not even remotely easy.

I am consistently shocked by the laissez faire attitude of accountants towards the legal documents that underpin self managed superannuation funds.

Any deficiency in the deed trail disqualifies anything that comes after it. Ideally, anything as important as a change of deed should be accompanied by a complete audit of the deed trail by a competent lawyer so as to ensure that there are no material deficiencies in the deed trail. If a change of trustee was botched a decade ago, or a previous deed update was not done according to the rules of the preceding deed then everything after it is invalid.

Anybody who gets their trust deed through their accountant is crazy. Most accountants use off the rack documents from firms like NowInfinity, who aren't lawyers, don't consider you circumstances, and disclaim all legal responsibility. They say that their documents are checked by lawyers, but that's worth precisely zero. There's no way to know whether the documents are up to date with the law, or if they're seriously out of date.

I ask a simple question. If the accountant uses a document warehouse, which provides generic, off the rack documents, who is checking to make sure that the new deed is worded and executed properly in the context of the provisions in the previous deed. It can only be the accountant.

And that would be legal work.

Never. ever. ever. let an accountant do legal work.

Dudley
January 15, 2024

Abolish Trust Deeds.

Compliance with Superannuation Industry (Supervision) Act 1993 (SIS Act) is far more relevant.

Abolish SIS Act. Individuals to decide how to manage their capital.

Bob
January 14, 2024

My SMSF was set up in 1990. The trust deed has been changed many times since then. In spite of the SMSF having several accounts with a major bank and also with the bank’s stockbroking arm, when I wanted to open a new account (term deposit) just recently the bank wouldn’t let me without first providing to them the original 1990 trust deed, which has been lost. No amount of pleading by me that the 1990 deed is no longer current or relevant was successful; the bank still insisted that the 1990 deed be produced. I don’t follow their logic but this episode shows how important keeping the original trust deed is.

Orsova
January 15, 2024

Bob,

You need to see an SMSF lawyer *immediately*.

Bob
January 15, 2024

I did. The bank would not accept anything other than the original trust deed. Know a good SMSF lawyer who can fix this for me?

Orsova
January 15, 2024

https://www.dbalawyers.com.au/smsf-compliance/a-1976-deed-cant-be-found-trust-fails-as-a-result/

Manoj Abichandani
January 13, 2024

Meg

As Been ThereB4 has commented above - that the problem here lies with Xanthe and I appreciate, in the real world, that she forgot to communicate a death of a beneficiary to the advisor / administrator of this change in circumstance and the BDBN never got updated etc... and this happens all the time. I think it is also the advisors / administrator’s role to check annually with the SMSF members to ensure that all BDBN are up to date.
Having accountability on whose responsibility is it to update BDBN out of the way - the next point and your main point - "it depends on the SMSF trust deed" on how the death benefit has to be treated by the Trustee if the beneficiary has pre-deceased the member. I do not agree on some of comments on how easy it is to update the trust deed and below is my argument:
According to you each trust deed has to decide how the BDBN has to be followed in one particular situation which is death of a beneficiary (you did not consider other situations such as birth of another dependent or new spouse etc.).
In your opinion following possibilities may be dictated by the trust deed:
a) BDBN becomes invalid as not all beneficiaries are alive, and the trustee (maybe new husband) decides what happens with the total death benefit
b) pay to the remaining beneficiaries - 50% or 33% each to the remaining two beneficiary where the balance 1/3rd to be decided by the trustee
c) something altogether different from the above options...
Updating a client SMSF deed is not simple, you are assuming that an advisor / administrator has the skill to read several deeds and then decide on which supplier to use for his clients. My experience is that barring a few highly experienced operators - the bulk of advisors / administrators have never read a trust deed. Many who have read, I doubt, have the capability to distinguish one deed from another. You are assuming that the advisor / administrator will want the same outcome for each SMSF member in his / her portfolio - which again is doubtful.
I have not seen a trust deed, which generally has 200 odd clauses, and all the clauses will suit all the clients. This means that each trust deed needs to be tailor made by a SMSF solicitor suiting the SMSF members and whenever the law changes - that deed needs to be updated accordingly. This assumes that the advisor / administrator has the capability to instruct on about 200 clauses which could vary per client.
The only way this is possible, if the SMSF solicitor drafting the deed has an online form (with over 200 end points) seeking instructions from the advisor / administrator on what clauses are to be inserted and the solicitor should provide for each one of the 200 clauses, 2 to 5 options which can be picked (provided the advisor/ administrator has the skill), depending on what suites that particular SMSF.
Lastly, SMSF member circumstances keep changing, this means the deed will need to constantly change – which is not practical and I think, not possible.

BeenThereB4
January 12, 2024

Meg, the example of Xanthe highlights that people (not only SMSF members) should review their wills etc for changes in circumstances. Xanthe should have amended her DBN's following passing of Annie.
Thanks for helpful article Meg.

Meg Heffron
January 12, 2024

She absolutely should have - it's such a shame that often people miss this step.

Rae
January 11, 2024

The decision in Hill V Zuda seems to confirm that a SMSF can expressly provide for payment of a death beneft other than to a dependent or the deceased estate; for example on the death of a reversionary pension holder to the estate of the deceased member who granted the reversionary pension or to the trustee of the testamentary trust created under the will of that deceased member.

Meg Heffron
January 12, 2024

Hi Rae I'm not sure I'd get that interpretation from Hill v Zuda. Apologies if I'm misunderstanding your point but in that case, the daughter of a deceased person was arguing that the super death benefit shouldn't go to the deceased's (de facto) spouse. The daughter's argument was that the BDBN (embedded in the deed I think) which gave the benefit to the spouse was invalid because it didn't comply with the normal SIS rules around witnessing etc. The court found that this was fine - those rules don't have to be complied with in an SMSF unless the Deed brings them into contention. In this particular case, both the potential death benefit recipients were dependants of the deceased so I don't think it was helping cases like the example I used here. Apologies if I've misunderstood your point here.

Charlie3
January 11, 2024

Great article Meg on some of the issues for super benefits on death ( and not just SMSF). gets you thinking of wider possible outcomes than the obvious ones

 

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