ORDERING A NEW SMSF TRUST DEED
If you have lost your SMSF trust deed we can provide a new one for you. The Topdocs Super Fund Lost deed package is suitable for those circumstances where the original trust deed of a Super Fund has been lost or destroyed, and provides the trustees with a new trust deed to govern the Fund.
THE 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 trust deed automatically incorporates minor legislative amendments, ensuring your deed stays current for longer.
YOUR SMSF TRUST DEEDS - ALWAYS UP TO DATE
The Topdocs SMSF deed update system provides a powerful solution for keeping your 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 a deed updated automatically each year or updated whenever you want. Learn more about the SMSF Deed Update system
WHY ORDER A TOPDOCS SMSF LOST DEED PACKAGE?
- Your package includes Australia's leading, fully provisioned SMSF trust deed
- Easy, ongoing maintenance of your SMSF deed through the Topdocs deed update system
- Easy, online ordering using the Topdocs Document Portal
- You can add your logo to your SMSF Lost deed package (for free) and promote your practice to clients
You can learn more about the Topdocs SMSF Lost deed 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 benefits permitted 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.
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.
Should you have any queries or require more information, please call the team at Topdocs on 1300 659 242.