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Self Managed Superannuation Funds

Today the structure and management of self-managed superannuation funds (SMSF) is an integral component of effective estate plans.

Many Australians today enjoy the benefits that come with managing their own superannuation fund. However, members of self-managed superannuation funds are often presented with a dizzying array of legislation and regulations that must be complied with to ensure that they continue to receive the benefits an SMSF has to offer.

Our lawyers appreciate the often daunting task facing our SMSF clients and work closely with our clients’ financial advisors on a variety of SMSF related matters to ensure that our clients remain on top of their legal responsibilities.

Limited recourse borrowing arrangements

Since 2007, SMSFs have been able to use borrowed money to acquire a range of investment assets and properties. At Kells, we are equipped to help you throughout the entire process to ensure that your fund remains compliant with superannuation law.

Our lawyers can assist with:

  • Purchases of property by SMSFs
  • Advising on loan documents
  • Transfers of property from members to trustees
  • Preparation of holding trust deeds and supporting trustee resolutions
  • Applications for concessional stamp duty on holding trust deeds
  • Related party loans
  • Commercial and residential leases
  • Transfers of property back to the trustee
  • Lost trust deeds.

Powers of Attorney

Member control is a critical requirement for any SMSF, so it is important that funds adequately prepare for circumstances where a member is not in a position to act. For example, a member may be travelling overseas for an extended period or they may have suffered a loss of capacity.

We can prepare power of attorney documents tailored to individual circumstances to help funds to continue to maintain compliance with the Superannuation Industry (Supervision) Act 1993 if the unexpected arises.

Death Benefit Nominations

Superannuation balances can often exceed the value of all a person’s other assets combined and it is often mistakenly thought that superannuation simply forms part of the deceased’s estate and distributed under the Will. This however is not the case.

Under superannuation legislation, superannuation death benefits can only be paid to certain individuals or the deceased member’s estate. In order for a member to control how death benefits are paid out, they must complete a death benefit nomination form. If a member dies without a valid death benefit nomination, it is up to the rules of the SMSF and the trustee to determine how any death benefits are paid.

Failing to correctly prepare a death benefit nomination for your SMSF can easily result in your superannuation benefits being paid out differently to what you had planned, either in the wrong percentages or even to people other than those you intended.

It is therefore vital that SMSF members ensure that their death benefit nomination form is up to date and checked regularly. Additionally, the need for and effect of binding death benefit nominations for superannuation death benefits must be considered as part of the estate planning process. We undertake a comprehensive review to ensure a tailored and holistic estate planning solution just right for your circumstances.

Changes of trustee

Having a corporate trustee of a SMSF can offer a wide range of benefits and is becoming increasingly common. We can document the retirement and appointment of trustees in accordance with the fund’s trust deed to effect the change from individual to corporate trustees. If the fund holds any real property, we can also assist you in transferring the property from the retiring trustees to the new trustee.

 Concessional stamp duty applications (NSW only)

In NSW, members of a SMSF can transfer business real property held in their individual names into their SMSF for a nominal stamp duty fee, provided that certain strict criteria are met. We assist SMSFs obtain this concession, saving thousands in potential stamp duty by:

  • Liaising with your accountant and/or financial advisor
  • Reviewing relevant documentation of your SMSF
  • Preparing and lodging the concessional stamp duty application on behalf of the SMSF
  • Once the concessional duty is approved, preparing all necessary transfer documentation and attending to registration of the transfer of the property into the SMSF.

If you need advice or more information on a SMSF, contact our experienced estate planning team today.


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