Do I really need to update my fund’s trust deed?
Your superannuation trust deed along with the superannuation laws, form the governing rules that self managed super funds (SMSFs) need to operate by. The introduction of the $1.6 million transfer balance cap (TBC) back on 1 July 2017 and new transition to retirement income stream (TRIS) rules were a ‘game changer’ for SMSFs when discussing benefit payments and estate planning. With the upcoming TBC changes as of 1 July 2021, now is the right time to review if your trust deed needs to be enhanced or amended to deal with the new approaches and strategies you may need to implement.
Read the deed
The first step in reviewing your superannuation trust deed will be to read it. Trust deeds are legal documents which can be complex to read, so you may want help from an advisor with this.
It is likely that most deeds will not result in a breach of any superannuation laws and would provide the trustee with powers to comply with relevant tax and superannuation laws as they change over time.
The next step would be to review the deed in consideration with your own circumstances.
For example, a common scenario may be a restrictive deed that only provides the trustee with a discretion to pay death benefits. Therefore, if a member of that SMSF wanted to create a binding death benefit nomination, it would be irrelevant due to the deed’s governing rules.
In any event, deeds which are clearly out of date will need to be amended as soon as possible.
Deeds post 1 July 2017
Post 1 July 2017, there are many approaches and strategies that will differ from the past and it is essential to ensure that your SMSF deed does not restrict you in anyway. We note the following areas should be considered:
Paying death benefits
The $1.6 million TBC (soon to be $1.7m from 1 July 2021) restricts the amount of money that can be kept in super on the death of a member. This is crucially important as when a member dies, their TBC dies with them. SMSF members should review their estate planning and further review their trust deed for the following:
- Does it allow for binding death benefit nominations (BDBN)?
- Would a cascading BDBN which allows for primary, secondary and tertiary beneficiaries be useful in the event the primary nominee is not alive at time of the member’s death?
- Do BDBNs lapse every 3 years in accordance with the trust deed when the legislation does not prescribe it?
- Does it consider the appropriate solution when there is a conflict between a reversionary pension and a BDBN and which will take precedence?
Reversionary pensions are pensions which continue being paid to a dependant after your death. Under the TBC, reversionary pensions will not count towards a member’s TBC until 12 months after the date of the original recipient’s death. Importantly, the transfer of the pension from the deceased to the new recipient will count towards the TBC. The value of the credit to the TBC will be the value of the pension at the date of death, not the value after 12 months. This increases the complexity of reversionary pensions prompting a review of trust deeds to consider:
- Does it allow for a reversionary pension to be added to an existing pension or are there restrictions?
- Should it automatically ensure that a pension is reversionary so that it is paid to a surviving spouse?
The TBC also has implications for strategies in commencing pensions and making benefit payments. Trust deeds may need to be reviewed for:
- Ensuring that commutations are able to be moved into accumulation phase rather than being forced as lump sums out of superannuation.
- Are there any specific provisions relating to the TBC? There may be value in ensuring that the deed restricts pensions from being commenced with a value greater than the TBC.
- Are there provisions which detail where commutations must be sourced from first?
- Are there restrictive pension provisions that the trustees must comply with?
Transition to retirement income streams
Tax concessions for TRISs where the recipient does not have unrestricted access to their superannuation savings (known as meeting a condition of release with a nil chasing restriction) have also been removed. Trust deeds may need to be reviewed for:
- Does the deed allow for the 10% maximum benefit payment to fall away once a nil condition of release is met?
- Does the deed deal with a TRISs character when a nil condition of release? (Does it convert into an account based pension?)
Other areas in which some trust deeds may be silent
If your fund’s trust deed is silent on a particular area and/or does not have a “catch-all clause” then it could be argued that the deed does not allow for it – hence a breach in the governing rules can be of risk.
Some of these areas include:
- can the fund borrowing via a Limited Recourse Borrowing Arrangement (LRBA) to gear property?
- ability for the fund to release payment of members’ excess contributions tax and Division 293 tax
- whether the fund can invest in digital currencies (eg. crypto currency) and derivatives (eg. options, CFDs)