UPDATE YOUR SUPER FUND TRUST DEED WITH CONFIDENCE
Updating an existing SMSF trust deed to a new deed is more than simply noting the variation clause; specialist knowledge is required to ensure your SMSF deed update is prepared correctly. When you update a SMSF trust deed with Topdocs, our legal team reviews and signs off on your prepared documents ensuring they are prepared correctly, and all relevant parties and procedures have been attended to.
Once you have converted your SMSF deed to Topdocs, our SMSF deed update system will ensure you deed is always up to date.
YOUR SMSF TRUST DEEDS - ALWAYS UP TO DATE
The Topdocs SMSF deed update system provides a powerful solution for keeping your Topdocs trust deeds up to date. Gone are the days of completing order forms and collating deeds whenever legislation changes. Using the Topdocs SMSF deed update system, you have the flexibility to choose if you want your deeds updated automatically each year or updated whenever you want.
Learn more about the SMSF Deed Update System
THE TOPDOCS SMSF TRUST DEED
The Topdocs SMSF trust deed is renowned for its quality and strategic provisions. Regularly reviewed by a panel of accountants, financial planners, dealer groups and legal professionals, the Topdocs trust deed is both flexible and current, and includes all the provisions presently allowable under the Superannuation legislation including SMSF borrowing and account based pensions.
Drafted closely to the SIS legislation and regulations, the Topdocs SMSF trust deed automatically incorporates minor legislative amendments, ensuring your deed stays current for longer.
WHY ORDER A TOPDOCS SMSF DEED UPDATE PACKAGE?
- Your documents are individually signed off by Topdocs Legal, ensuring all parties and procedures are included
- Easy, ongoing maintenance of your SMSF deed through the Topdocs deed update system
- Your package includes Australia's leading, fully provisioned SMSF trust deed
- Easy, online ordering using the Topdocs Document Portal
You can learn more about the Topdocs SMSF deed update documentation in the RELATED INFORMATION tab.
Should you have any queries or require more information, please call the team at Topdocs on 1300 659 242.
Outlined below is additional information relating to the document you have chosen.
Why use the exceptional Topdocs SMSF trust deed ... [more]
The Topdocs SMSF trust deed has a long standing pedigree and is regarded as one of Australia’s most strategically planned and structured deeds, designed specifically for the SMSF environment.
In conjunction with our panel of specialist SMSF Lawyers, we have taken great care when drafting the Topdocs SMSF trust deed to ensure it provides, and continues to provide, maximum flexibility in terms of allowable contributions, the types of benefit payments permitted and estate planning strategies. Topdocs’ advisers have been able to facilitate this outcome by drafting the Topdocs deed closely to the SIS Act and Regulations. This means that when new legislation is passed, more often than not your Topdocs trust deed will easily incorporate these changes without the need for an update. Not only does this ensure your clients have maximum flexibility in the management of their SMSF, but it also ensures their trust deed will remain up to date for longer.
Whilst the Topdocs trust deed is drafted primarily to follow the SIS Act and Regulations, it does also contain particular express provisions where necessary. Some examples are provisions relating to Complying SMSF Loans and Pension Resets, as shown below.
All Topdocs deed variations are provided with a letter of Legal Oversight. This protects your clients by ensuring their documentation is prepared in accordance with the rules of the Fund. Why is this important? Improper preparation of deed variations can potentially create trust resettlement or other issues and potentially expose your clients to Capital Gains Tax problems.
Planning the effective distribution of a member’s benefits, following their death, is a very important consideration of a properly drafted trust deed. The Topdocs trust deed is drafted to enable members to provide their estate planning instructions, as well as protection for their intended beneficiaries. Some of the exceptional features of the Topdocs trust deed include:
- the power to appoint individual or corporate trustees as well as an approved trustee, if required
- permitting trustees to make Death Benefit Rules, at the request of a member
- empowering the members to make binding (BDBN) and non-binding death benefit nominations, which are non-lapsing, and allows a BDBN to have multiple layers, tailored to a member’s specific needs
- enabling members to appoint Death Benefit Guardians to ensure an extra degree of certainty over the correct allocation of death benefits
- the grandfathering of previous instructions (e.g. BDBNs, Pension Reversions, Death Benefit Guardian appointments etc.) when updating deeds
- the power for trustees to pay all forms of death benefits permitted by law, including lump sums and pensions, and to include anti-detriment payments
- fall-back provisions regarding voting rights in the event of certain trustees joining with others to influence decisions
One of the very select deeds to expressly allow the resetting of Account Based Pensions, the Topdocs trust deed is up to date with provisions covering the automatic reversion of pensions (with grandfathering of those instructions when updating the deed), as well as guidance in any potential conflict between an automatic reversion of a pension and a Binding Death Benefit Nomination.
The Topdocs trust deed excludes information concerning the creation of pensions no longer able to be established, whilst comprehensively providing for the establishment of Transition to Retirement Income Streams, Account Based Pensions and, where permitted, Market Linked Pensions.
Areas covered by the Topdocs trust deed include:
- the power for trustees to commute pensions in all the circumstances permitted by law and to roll-over a pension internally into an accumulation account or to purchase a new pension
- facilitates the payment of all compliant pensions including Transition to Retirement Income Streams and Account Based Pensions, as well as allowing the continued payment of already established pensions that are no longer available (such as Defined Benefit Pensions)
- expressly provides for conversion of Allocated Pensions to Account Based Pensions
- the trustee has the power to document the terms and conditions of any pension not expressly covered in the deed.
The Topdocs trust deed contains broad investment powers, whilst limiting the range to those investments permitted under superannuation law. The deed provides power to the trustees to borrow AND allows for securing of fund assets under the ‘limited recourse borrowing arrangement’ or SMSF loan provisions. The Topdocs trust deed is readily accepted by major lenders, making borrowing a simpler process.
Specifying certain assets as being held for particular members is another feature explicitly provided for in the Topdocs trust deed. This permits the trustee to allocate assets to particular members, which can provide stamp duty benefits in some states. It is also used in the situation where there is a large difference in the age of the members (e.g. a parent and a child) with different investment profiles and time horizons.
The Topdocs trust deed provides the trustees with the option of external insurance or self-funded insurance.
Empowering trustees to pay all the kinds of benefitspermitted by law, including benefits in the event of temporary and permanent disablement, or terminal illness, either in the form of (where applicable) lump sums, pensions and income streams, is a feature of the Topdocs trust deed. The deed provides guidance to trustees for the calculation of benefits in the event of temporary incapacity of a member.
Additionally, an important consideration involves the appointment of multiple individuals, in the capacity of legal personal representative (LPR) of a disabled member, as a trustee or trustees of the SMSF. The Topdocs trust deed allows for the common situation whereby, for example, two people have been appointed under an Enduring Power of Attorney as the LPR of an individual. Both could become trustees but with one vote (i.e. without jeopardizing the voting capacity of other members).
Membership and Contributions
Ensuring a trust deed contains appropriate provisions for both the membership of the fund and the contributions it may accept are very important considerations. The Topdocs trust deed, among other powers:
- contains the power for the trustees to admit anyone permitted by law, including minors, to membership, and to maintain accounts for members with nil balances;
- provides for the trusteeship of the fund when members are underage or otherwise unable to act as trustee, to ensure the fund continues to meet the definition of a SMSF; and
- empowers the trustees to accept all contributions permitted by law, including contributions in-specie, contributions splitting, spouse contributions, government co-contributions, child contributions, transfers and rollovers.
- The Topdocs trust deed also permits the fund to become a QROPS, to accept transfers from UK pensions.
Updating multiple SMSF trust deeds at once ... [more]
To save you time, we provide a facility to update multiple SMSF trust deeds by completing a single spreadsheet. All you need is complete the spreadsheet below, return it to us and we'll do the rest.
Instructions on how to complete the spreadsheet are outline in the worksheet titled "Instructions'.
Legal review on SMSF deed updates ... [more]
Topdocs ensures your SMSF deed update documentation is prepared correctly, and protects your firm and your clients, through our provision of legal review.
What is legal review?
Our legal review is the process of an in-house lawyer examining the current trust deed of your Superannuation Fund, and confirming the documentation provided to update the trust deed has been prepared correctly.
Issues associated with preparing Trust deed updates
Updating an existing SMSF to a new deed is more that simply noting the variation clause. There may be additional parties required to consent to the update, conflicting clauses in the current deed, clauses that must be retained in an upgrade and many other issues that can complicate the deed update process. These additional requirements have an effect on the way the documents to update the deed are drafted. Whilst some deeds may be easy to update, and can be done so via a standardised template, many deeds require drafting outside the ‘norm’ that requires legal expertise in order to be prepared correctly.
The preparation of SMSF deed updates therefore presents two main issues:
- Legal expertise is required in the examination of the trust deed to determine how to update the deed; and
- Specific drafting is often required to properly prepare the update, which needs to be done by a lawyer.
Issue 1 – Legal expertise is required in the examination of the trust deed to determine how to update the deed
The documentation that is required to update a trust deed is dictated by the terms of the current deed of the Fund. Therefore an interpretation of the current deed is required to determine the parties and procedures required to update the trust deed. This interpretation should either be done by a lawyer, or at the least confirmed by a lawyer.
This prerequisite creates issue for advisers who order their trust deed updates online and download their deeds without legal oversight of their documentation. Part of the process of ordering a deed update online is providing the parties who you believe, according to your interpretation of the trust deed, are required to update the trust deed. Without a lawyer at the other end looking at the trust deed to confirm these parties, your answers are therefore dictating how the documents are being drafted.
The issue is that if the documents end up being drafted incorrectly because of your interpretation of the trust deed, should anything go wrong as a consequence, you may be the one who the trustees of the fund take action against. And your Professional Indemnity insurance is not likely to cover you should this occur, because this situation has occurred as a consequence of you interpreting a legal document, which only a lawyer’s PI insurance covers.
Topdocs allows you to order your deed updates online, but to only receive them as full service. This ensures ordering your documents is quick and easy, and also enables us to interpret your trust deed to confirm the information you have provided to us is correct.
Issue 2 - Specific drafting is often required to properly prepare the update, which needs to be done by a lawyer
Many deeds require specific drafting to be updated, due to reasons such as additional parties being required to consent to the update, conflicting clauses in the current deed, clauses that must be retained in an upgrade and many other issues. For this reason, it is important to update your deed with a firm that has the ability to not only interpret your deeds for you, but to provide the specific drafting required to properly update your trust deeds.
Further, it is important to note that no matter how sophisticated an online deed update system is, it cannot cater for all types of trust deeds and circumstances on the market, and therefore, you are putting yourself and your clients are risk if you order and receive your deed updates online.
Topdocs not only interprets your trust deeds for you, but we ensure all required drafting to properly prepare the update is done to ensure each update we prepare for you is correct. We then have our lawyers sign off on our work.
What can happen if a deed update isn't legally reviewed?
If a deed update isn’t carefully prepared, and consequently, prepared incorrectly, a range of issues can arise. These issues can result in major financial repercussions for the Fund, including;
- loss of concessional tax status if the Fund is later deemed to be non-compliant by the regulator, as a consequence of an action taken by the trustee under the invalid deed
- resettlement of the trust with CGT implications, if a new trust is deemed to have been created as a consequence of the error
- challenges to assets held in the Fund, as a consequence of an action taken by the trustee under the invalid deed. For example, a disgruntled beneficiary challenging a Binding Death Benefit Nomination that was created under the invalid trust deed.
Should any of the above occur, and result in adverse financial consequences for your client, and you have not received legal review and sign off on your documentation, then it may be you who the trustees of the fund will take action against.
Topdocs' legal review service
Topdocs manages any potential issues associated with updating a trust deed by:
- interpreting each deed we receive to properly determine the procedures and parties required to update the deed
- preparing any specific drafting required to ensure the deed update is done correctly
- providing you with a letter of legal sign off on all deed updates we prepare for you, stating the deed update has been correctly prepared.
Ordering a deed update is done quickly and easily online. However, to protect you and your client, we only provide deed updates via full service delivery. That is, you deed update is prepared in-house, reviewed by our legal team and then send to you by express post. It is this process that enables us to ensure your trust deed is compliant and prepared correctly.
For more information about our legal review service, please contact the team at Topdocs on 1300 659 242.
The Topdocs SMSF deed update system ... [more]
Gone are the days of completing order forms and collating deeds whenever legislation changes. Using the Topdocs SMSF deed update system your clients' trust deeds are conveniently listed in a single online location, can be updated automatically or 'on-demand' and can be accessed anytime, anywhere. Best of all, the Topdocs SMSF deed update system is free to access and easy to use.
ANNUAL UPDATES OR UPDATE ON DEMAND – YOUR CHOICE
Unique to Topdocs, the SMSF deed update system lets you choose how you would like to keep your trust deeds up-to-date. Using the system, you can update a fund whenever you want. This is called On-Demand. Alternatively, you can set a Fund to be updated automatically each year. This is the Annual deed update service. Either way, you have complete control over how each of your Funds is updated.
QUICK AND EASY UPDATING
Regardless of which method you choose to update a Fund, it’s quick and easy. Choose the Annual SMSF deed updates service and your updates are provided automatically each year. Easy. Choose the On-Demand method to quickly update a single or multiple Funds with a couple of mouse clicks. Easy.
NO MORE ORDER FORMS
The SMSF deed update system removes the need to complete an order form to update a Fund. With all your Topdocs Funds listed in a single location, all you need to do to update a Fund is select it, provide your payment details and you’re done!
Just as you can choose if you would like a Fund updated automatically each year or whenever you want, you can also choose how you would like your update delivered using the SMSF deed update system. You can elect to have the deed update emailed or professionally printed, bound and delivered by express post to you. Alternatively, you can have the update sent directly to your client by email or professionally printed, bound and delivered by express post. You decide.
SINGLE, ONLINE LOCATION
All of your Topdocs superfunds are conveniently located in the SMSF deed updates section of the online Topdocs Document Portal. The details of any Fund, including the current member and trustee details along with their current and prior Governing Rules, are just a click away. Plus the online access gives you the flexibility to manage your clients’ Funds anytime you need to.
EASY TO USE CONVERSION TOOLS
The SMSF deed update system only contains those funds that have been established or varied with Topdocs. You can easily convert funds created by other suppliers to the Topdocs Governing Rules using our easy-to-use conversion tools so you can manage them in the SMSF deed update system too.
The auditing process is streamlined and controlled using the SMSF deed update system. Firstly, all your clients are listed in a single location, making it easier for your auditor to access and review the required information. Secondly, your auditor is provided restricted access to your clients’ Fund details so they only have access to the information they require and to protect your clients’ privacy. Thirdly, as all your Funds in the SMSF deed update system are on the Topdocs Governing Rules, your auditor only needs to review and sign off one set of documents.
The core purpose of the SMSF deed update system is to assist you in keeping your clients’ trust deeds up-to-date and compliant. The system enables to you clearly see the status of each Fund and then easily update it where required.
EXCEPTIONAL TOPDOCS SMSF DEED
Establishing, updating or converting to the Topdocs SMSF deed is a wise move. Regarded as one of Australia’s most strategically planned and structured, quality SMSF deeds, the Topdocs deed is designed specifically for today’s complex SMSF environment. . The Topdocs SMSF deed is supported by Topdocs Legal Pty Ltd and a panel of specialist SMSF lawyers and advisers.
TECHNICAL ADVICE AND SUPPORT
As part of the Topdocs service, you have access to our legal, technical and documentation experts to discuss any queries you might have regarding the Topdocs deed or the SMSF deed update system. Simply call us on 1300 659 242.
MARKETING AND CLIENT MATERIAL
Topdocs provides marketing material to assist you explain the importance of keeping a SMSF trust deed up-to-date and compliant to your clients. Pro-forma client letters, brochures and technical materials relating to updating SMSF deeds can be found in the Technical Articles area of the Document Portal’s Knowledge Centre.
Should you have any queries or require further information, please call the team at Topdocs on 1300 659 242.