SMSF Full Replacement Deed

Why update my old SMSF Deed?

SMSF laws change. Old deeds are dangerous. They contain irrelevant clauses. You risk using an illegal power. An old SMSF makes it harder for your accountant, financial planner and auditor to look after your SMSF.

Replace your ‘regimented’ deed with a ‘permissive’ deed

SMSF deeds should be permissive, not regimented. Permissive deeds allow you to do whatever you like. This is subject to the superannuation and trust laws.

In contrast, regimented deeds try and ‘help’ the trustee. They mention all the legal restrictions into the SMSF deed. Often there is huge unnecessary detail. Often the regimented deed quotes huge slaps of the legislation in the SMSF trust deed. Sadly, every time the laws change, you need to update a regimented deed.

Permissive SMSF Deeds allow greater flexibility. They adapt to changes with minimal adjustment. The main difference is clear. Regimented SMSF deeds require almost constant monitoring, review and updating. This is to keep pace with changes to the legislation and case law. At Legal Consolidated, we draft permissive deeds. They need less updating.

19 Reasons to update your SMSF Deed

Self-Managed Super Fund (SMSF) Deeds previously required updates in:

–   1999 – ‘Excluded Funds’ became ‘Self-Managed Super Funds’, preservation & in-house assets SMSF update

–   2007 – ‘Simpler Super’

–   2024

Now these are the 15 changes to SMSF Deeds required:

Our Self Managed Super Fund deed update complies with the 19 main changes to SMSF Deeds. This is under the Budget and ATO’s internal working papers (which :

1. 1. Binding death benefit nominations (BDBNs) given the High Court’s landmark decision in Hill v Zuda [2022] HCA 21
   2. Contributions given the removal of the ‘Work Test’ for those between 67 and 75 years old from 1 July 2022
   3. Corporate collective investment vehicles, cryptocurrency, non-fungible tokens and blockchain technology
   4. Internally ‘rollback’ pensions to accumulation for up to 6 members
   5. Segregate assets between accumulation and pension phases
   6. Reject contributions
   7. Refund contributions;
   8. Deal with excess transfer balance tax and excess non-concessional contributions
   9. Allow income streams and Account-Based Pension (grandfathered)
   10. Specify guardians for incapacity and death
   11. Identify the Power of Attorney when living overseas for more than 2 years
   12. Resettle pensions with flexible timing without mingling with an accumulation account
   13. Allow reversionary beneficiary nominations
   14. Provide CGT relief
   15. Deal with segregated and unsegregated assets
   16. Cease or keep Transition to Retirement Income Streams
   17. Calculate member balances, across different funds
   18. Calculate internal pension rollbacks to accumulation
   19. Allows for an unlimited number of members (currently the law allows 6 members)

The SMSF update is required to give maximum flexibility to your accountant and adviser.

Investing into Cryptocurrency using SMSF

Legal Consolidated SMSF deeds are fully compliant with the new Cryptocurrency rules see here.

Why does my Accountant want the SMSF update?

Pre-2012 SMSF Deeds fail to deal with 10 issues:

1. clauses requiring the Trustee to do something that is no longer legal or beneficial
2. ‘regimented’ with unnecessary rules versus ‘permissive’ that are silent as to what must be done. This allows the SIS Legislation to automatically apply
3. increased concessional contribution cap
4. insurance cover – removing from trust deed out-of-date conditions
5. losing pension at death or if the minimum payment is not made
6. excess concessional contributions taxed at member’s marginal rate (-15% offset)
7. Investment Strategy after the ATO’s new Audit approach
8. report assets at market value and leave the mechanism for the Accountant
9. allowing remuneration for non-trustee duties
10. allowing for non-lapsing Death Benefit Nominations

Start building your SMSF Full Replacement Deed update here.

The Legal Consolidated SMSF Update is designed to stop a re-settlement

Resettlement of an SMSF occurs when a new ‘trust estate’ is created out of an old trust. When this occurs, the trustee is considered to have disposed of the assets in the old trust. Accordingly, a new trust is created. This results in significant negative tax implications.

However, there is little risk of resettlement under the High Court authority of Commercial Nominees (2010). 

Updating your SMSF Deed through Legal Consolidated does not result in the resettlement of your SMSF. We retain those parts of the old Deed required to not affect a resettlement. This is based on both the legislation and previous court decisions. Start building now.

Telephone us anytime for help on how to answer the questions. However, start the Build for Free building process first. As it answers most questions.

Any stamp duty on Legal Consolidated SMSF update?

Legal Consolidated SMSF Deeds are not dutiable. We draft them so that they do not need to be lodged for stamp duty. However, if the SMSF Deed is in the Northern Territory then you have to lodge the SMSF deed for stamping. 

Stamp duty in the Northern Territory for Legal Consolidated SMSF upgrade

A Legal Consolidated SMSF deed that relates to property in the NT (even if signed outside the NT) must be lodged with the:

• NT Territory Revenue Office, GPO Box 1974, Darwin NT 0801

In the NT there is usually a ‘nominal’ fee of $20 (plus $5 for each duplicate deed). This is under section 2 of Schedule 1 and section 9B Stamp Duty Act 1978 (NT)). Upon signing you only have 60 days to complete and lodge the Stamp Duty Lodgement Form. The form is freely available from the NT Department of Treasury and Finance website.

Stamp Duty requirements for SMSF Deed update in New South Wales

Legal Consolidated SMSF Deeds and our deeds that amend SMSFs are not dutiable for stamp duty in NSW. See 65(10)(a) Duties Act 1997 (NSW). You do not need to lodge our deeds for stamping. 

No stamp duty in Victoria for Legal Consolidated SMSF Deed upgrade

No duty assessment is required for Legal Consolidated SMSF deeds that establish or amend the SMSF. See section 39 Duties Act 2000 (Vic). You do not need to lodge our deeds for stamping. 

How much stamp duty is payable on a Queensland SMSF upgrade?

When you build on Legal Consolidated’s website SMSF Deeds and SMSF Deed Updates there is no stamp duty. And you do not need to lodge such Legal Consolidated deeds for duty. See sections 9 and 10 Duties Act 2001 (QLD). If you are moving cash or stamp dutiable property into or out of the SMSF then you will need to pay stamp duty. But, as to the Legal Consolidated SMSF deeds themselves, they are not dutiable.

The stamping of Western Australian SMSF deeds and variations

No duty assessment is necessary for Legal Consolidated SMSF Deeds and deeds that amend an SMSF deed. See the Duties Act 2008 (WA). You do not need to lodge our deeds for stamping. 

Dealing with South Australian stamp duty for SMSF Deed update

The good news here is that Legal Consolidated SMSF Deeds and SMSF Deeds of Variation are not dutiable. They do not need to be lodged. See Schedule 2, Part 2, Item 30 Stamp Duties Act 1923 (SA). However, such deeds need to be lodged if the deed moves assets or changes the interest in the underlying assets in the SMSF. For example, you move the $4m vineyard in the Barossa Valley from Mum’s account in the SMSF to Dad’s account in the SMSF.

Legal Consolidated SMSF deeds and variations are designed to not move or change any rights to the assets in the SMSF.

If your accountant is concerned, then out of an abundance of caution, lodge the Legal Consolidated SMSF Deed or variation at RevenueSA, GPO Box 1353, Adelaide SA 5001 and ask for the deed to be stamped ‘exempt’.

No stamp duty on Legal Consolidated ACT SMSF upgrade

Legal Consolidated SMSF Deeds and deeds of variation are drafted so that they have no stamp duty and are, also, not required to be lodged for stamping. See Duties Amendment Act 2008 (ACT). You do not need to lodge our deeds for stamping.

Tasmanian stamp duty on Legal Consolidated SMSF deed update

Happily, Legal Consolidated drafts its SMSF Deeds and variations so that they neither suffer any stamp duty nor need to be lodged. You do not need to lodge our deeds for stamping.