When Superannuation Warehouse sets up a new SMSF, we issue five documents as part of the set-up process, one of these is the Trust Deed. An SMSF is governed by the Trust Deed and the Trust Deed sets out the rules of the Fund.
The SMSF Trust Deed is the instrument that establishes the Fund, and once it is executed the SMSF comes into existence. Whilst the Self Managed Super Fund Trust Deed can impose more onerous regulations for the Trustees to follow, it is not permitted to contain clauses which require the Trustees to breach the SIS Act.
There is no particular age that would cause an automatic review of your SMSF Trust Deed. It is much more about ensuring that the governing rules allow the strategy and activities the Trustees wish to undertake.
The Trust Deed can be amended any time, but the Trustee must follow the guidelines that are set out in the original Trust Deed of the SMSF.
When we set up the SMSF on your behalf, the Trust Deed that we issue is provided by LightYear Docs. For a copy of the Trust Deed that we previously issued to our clients, a sample can be downloaded by clicking on this link.
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Q:If the original Trust Deed for the Fund is missing, will a scanned photocopy suffice?
As Trustees of the SMSF, it is highly important all establishment documents including the original Trust Deed for the Fund are retained and in safe-keeping. In the scenario that the original Trust Deed is missing, a scanned photocopy may suffice.
A recent court case named Sutton v NRS(J) Pty Ltd [2020] NSWSC 826 illustrated that a scanned photocopy of the Funds Trust Deed was indeed acceptable where the original was found to be missing. This case was specific for a discretionary Trust but has the same implications for an SMSF Trust Deed.
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Q: Can an SMSF Trust Deed be executed and signed electronically?
An SMSF Trust Deed is acceptable in regards to the execution of the document. However, some banks are still quite old-fashioned and depend on documents that are signed via wet ink signature in comparison to an electronically signed Trust Deed. It is important to check with the specific bank whether the electronic signature is suitable.
For a recent article covering on electronically signed Trust Deeds, please see here.
The ATO has provided us with General Advice regarding electronic signatures for Trust Deeds and they have informed us that this is allowed. Please see here.
The Investment Strategy will be aligned with the Trust Deed, setting out specific investments the SMSF can make. To download the Investment Strategy document that we issue, please click here.