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. The SMSF Trust Deed is the instrument that establishes the Fund, and once it is executed, the SMSF comes into existence. The Trust Deed is a book of rules to govern the SMSF. Whilst the Trust Deed can impose more onerous regulations for the Trustees to follow, it is not permitted to contain clauses which require the Trustee to breach the SIS Act.
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.
The Trust Deed can be amended at any time Trustees deem fit. Trustees must follow the guidelines for amending the Deed as set out in the original Trust Deed of the SMSF. The Deed we issue refers to the Superannuation Act and Superannuation Regulations and is written in a way that removes the need for regular updates. However, some providers quote sections of legislation in their Deeds. This would require a Deed update when legislation changes.
We issue the Trust Deed at no additional fee as part of the set-up process. There are no particular events we foresee that would cause an automatic review of your Trust Deed. If, however, the Trustee wishes to update the Deed of the Fund, we charge $350 to execute the request. For more information on our fees, click here.
The Deed should generally be witnessed by two independent persons over the age of 18. However, if there’s a Corporate Trustee in place, section 127 of the Corporations Act allows for the Trustee to execute the Deed without witnesses.
The Investment strategy will be in alignment with the Trust Deed, setting out specific investments that the SMSF can make.
To download a copy of our Investment Strategy Template, click here.
It is important for Trustees to retain a copy of all the Fund’s establishment documents and that includes an executed Trust Deed. If the original Trust Deed is lost, a photocopy may be sufficient.
There was a recent Court case called Sutton v NRS(J) Pty Ltd  NSWSC 826 where it was noted that a photocopy of the Trust Deed was acceptable in the absence of the original copy. Although this case dealt with a discretionary trust, the same is also applicable to an SMSF as an SMSF is also a type of trust.
An electronically signed Trust Deed is technically acceptable. However, banks are quite old-fashioned as they usually prefer documents to be signed in wet ink so it is prudent to check with the bank whether an electronically signed Trust Deed is sufficient.
There was a recently published article which provides guidance on the electronic execution of deeds which is also applicable to SMSFs. The ATO also provided us with general advice regarding their acceptance for electronic execution.