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Smartcorp Legal FAQs

Companies

Trusts

Self-Managed Superannuation Funds (SMSFs)

Companies

What are the replaceable rules? Do they apply to my company or does the constitution?

A company can be governed by a constitution, the replaceable rules or a combination of both.

It is common practice to adopt a constitution on or before the company is registered. A constitution can also be adopted at any time after registration. If the members of the company did not agree in writing to a particular company constitution prior to registration, then in most cases, the replaceable rules in the Corporations Act will apply.

The replaceable rules are basic rules of internal company management which are set out in section 141 of the Corporations Act. As their name suggests, these rules are replaceable and a company may adopt a Constitution to replace part or all of them.

Not all the replaceable rules apply to a proprietary company if the same person is the sole director and sole member. Nor do they apply to a special purpose company.

What can we do if we need a Constitution?

Reasons why a company many need a Constitution range from simple to complex e.g. the bank won’t open an account for the company without one ,or a complex share structure is required to ensure control of the company, or to give the directors the ability to declare different dividends on shares.

The replaceable rules (or parts of) can be amended or replaced by passing a special resolution of the company. Before amending or replacing the replaceable rules, the rights of the issued shares should be considered to ensure that there are no unintended tax or other consequences, such as variation of share rights. In some instances, the consent of all the shareholders will be required in addition to a special resolution of the company.

What is the advantage of having a Smartcorp Constitution?
  1. Smartcorp’s Constitution contains comprehensive classes of shares with various rights. Without a Constitution containing classes of shares and rights attaching to those shares, directors need to draft the rights to be attached to shares for each share issue. This can cause legal problems and it may later be difficult to find the record of the relevant meetings of directors. It is much more practical to include the share structure in the Constitution.
  2. A provision dealing with conflicts of interest that banks and other lending institutions generally seek when lending money to a proprietary company.
  3. A provision relating to the discretion of directors to refuse to register a transfer of shares without giving any reason.
  4. Rules relating to calls on shares and forfeiture of shares that may apply if the issue price of a share is not fully paid (although par value has been abolished, shares still have an issue price).
  5. Rules providing for the indemnification of directors and director's insurance.
  6. The standard Pty Ltd constitution also includes a Division 7A loan agreement between the company and its members (for no additional fee).
What type of share structure does the proprietary company limited by shares contain and what is the authorised capital?

Smartcorp’s standard Pty Ltd company constitution contains 25 classes of shares with varying rights.

Companies no longer have an authorised capital. The Company Law Review Act 1998 repealed the provisions in a company's constitution stating the amount of the company's share capital and dividing the share capital into shares of a fixed amount. This means that all companies have ceased to have an authorised capital and therefore, there is no maximum number or value of shares the company can issue.

What are the rights of ordinary shares and why are they not defined in Smartcorp’s Constitution or the Corporations Act?

Historically the rights of ordinary shares were not defined. What makes them ordinary shares is the fact that they don't have particular rights prescribed to them. Therefore, they are not defined in the Corporations Act or Smartcorp’s Constitution.

Why can’t a trust hold shares in its name in a company?

A trust is not a separate legal entity and therefore cannot hold shares in a company. However, the trustee of the trust may hold the shares, in their capacity as trustee of the trust. The trustee holds the shares in trust for the beneficiaries of the trust. When completing your company order details in Smartcorp, enter the trustee’s name (individual or corporate) as the shareholder, and answer No to “Are the shares to be owned beneficially?”. If you would like the beneficial owner’s name to be printed on the company documents, enter the trust’s name in the Beneficial Holder’s name box, preceded by “As trustee for” or similar words.

Why can’t a superannuation fund hold shares in its name in a company?

A superannuation fund is not a separate legal entity and therefore cannot hold shares in a company. However, the trustee of the super fund may hold the shares, in their capacity as trustee of the fund. The trustee holds the shares in trust for the members of the fund. When completing your company order details in Smartcorp, enter the trustee’s name (individual or corporate) as the shareholder, and answer No to “Are the shares to be owned beneficially?”. If you would like the beneficial owner’s name to be printed on the company documents, enter the fund’s name in the Beneficial Holder’s name box, preceded by “As trustee for” or similar words.

How does a Sole Director/Member Company operate?

A proprietary company in Australia requires at least 1 director and 1 member however the company’s constitution may increase this.

If the minimum number of directors that must hold office at any given time is not met, then the company will be in breach of its constitution and the effect of any actions taken by the director(s) may be called into question. If a quorum of directors is not met, a directors meeting cannot be held.

If a quorum of members is not met, a general meeting cannot be held.

If an older constitution does not allow the company to operate with 1 director and 1 member it may be necessary, depending on the constitution, to appoint a temporary director and/or issue shares to a temporary member so that appropriate meetings may be held, and the constitution amended.

A company with two directors and two members may require amendment if one of the directors/members dies. The identity of the executor(s) of the estate and the provisions of the Will must be considered before company documentation is prepared and signed. It may be the case that the share(s) be transferred in accordance with the Will or intestacy. Professional advice is recommended.

Who can be a director of a company?

A director of a company must be at least 18 years old and must consent in writing to their appointment before being appointed.

A director must not:

  1. be an undischarged bankrupt;
  2. have entered into a personal insolvency agreement under the Bankruptcy Act 1966 and failed to fully comply with the terms of the agreement;
  3. been banned by ASIC or a court from managing corporations under the Corporations Act 2001 (the length of the ban will be set out by ASIC or the court);
  4. be convicted of dishonesty related offences, such as fraud (automatically banned for five years from the date of their conviction or, if imprisoned, for five years from the date of their release).

A proprietary company must have at least one director, who must ordinarily reside in Australia. If the proprietary company engages in crowd-sourced funding, it must have at least two directors.

A public company must have at least three directors, at least two of whom must ordinarily reside in Australia.

Is a company secretary required?

It is not mandatory for proprietary companies to appoint a secretary (CLERP 1-4 legislation, which came into effect in March 2000). Public companies must continue to have at least one Australian resident secretary. A proprietary company may choose to have one or more secretaries. If they do, at least one secretary must reside in Australia.

If a sole director is also appointed as secretary, then the company can rely on section 127(1) of the Corporations Act regarding executing company documents without a common seal.

What is a Public Officer?

All companies carrying on business or earning income from property in Australia must have a Public Officer – unless specifically exempted.

A Public Officer is a company's representative to the ATO and is responsible for the company's obligations under section 252 of the Income Tax Assessment Act 1936.

A company must notify the ATO of the Public Officer’s appointment within 3 months of the company carrying on business or first earning income in Australia. If a company fails to appoint a Public Officer within the 3 month period, it is guilty of an offence for each day it does not have a Public Officer.

The Public Officer must be at least 18 years of age and reside in Australia. Usually a director or secretary of the company is appointed as the Public Officer. If you nominate a Public Officer in your company order, Smartcorp will provide a Consent to Act as Public Officer with the company documents.

What is the minimum and maximum age of shareholders?

The Corporations Act does not define the age of a shareholder, however shareholders should have the capability of signing their name and understanding what they are signing.

The initial shareholders in a company should be 18 years of age or over, as they are required to sign the Constitution of the company.

There may be adverse consequences for the company if a person under the age of 18 signs the Constitution. Members appointed after registration of the company may be under 18 years of age, as they are not required to sign the constitution.

How should a company execute documents?

A company can execute a document (including a deed) in various ways to create a legally binding agreement.

Generally, to be acceptable to third parties, it is strongly recommended that a document be signed in accordance with section 127 of the Corporations Act 2001 (Cth). However, a document may also be signed by an authorised signatory or in accordance with the provisions of the company’s constitution.

Subsection 127(1) Corporations Act provides for signatories by:

  1. two directors;
  2. one director and the company secretary; or
  3. the sole director/secretary.

A document may also be executed by the company in accordance with methods provided in its constitution. If the requirements of this method do not satisfy the requirements of section 127 of the Corporations Act, third parties may raise issue with the execution or enquire further to determine the effectiveness of the company execution or request that additional documentation be prepared to ratify and confirm the company execution.

What is an Ultimate holding company?

An ultimate holding company (UHC) is a company that has ultimate control over another company. An ultimate holding company can have one or more subsidiary companies, but it cannot itself be the subsidiary of another company. For example, if Company X’s shares are all held by Company Y and Company Y’s shares are all held by individuals, then Company Y is the ultimate holding company of Company X.

An ultimate holding company does not usually participate in the day to day operations of its subsidiaries; the ultimate holding company oversees the subsidiaries and holds all assets. This control is the main element of an ultimate holding company.

A holding company may be set up to protect their assets or to minimise risk. A holding company is seen as a separate entity and assets held under this company will not be factored in should the subsidiary company face bankruptcy or legal action.

My client is trying to open a company bank account but the bank won’t accept that the Certificate of Registration is the original. What can I do?

Because the company is registered electronically, ASIC sends the Certificate of Registration as a PDF file, which Smartcorp is registered to print. The Certificate is a black and white document as ASIC does not provide coloured images for electronically transmitted Certificates.

Occasionally, a bank that is unfamiliar with ASIC’s company registration process will reject the certificate, asking the customer to provide the “original”. To assist with resolving this issue, Smartcorp includes a letter in the company’s Bank Account Kit, detailing how the Certificate is produced and confirming that it is the original provided by ASIC.

If the bank still has any questions regarding the appearance of the Certificate, they should phone the Australian Securities and Investments Commission on 1300 300 630 for verification.

Trusts

What do I do if my client has lost their original trust deed establishing a Discretionary Trust or a Unit Trust?

Assuming that a thorough search has been made for the original deed, other options are:-

  1. Is there a copy of the original executed deed? Ask the banks that the trustee has dealt with, lawyers who acted on a purchase for the trustee etc.
  2. Who provided the original trust deed? If the document provider or lawyers are still in existence or practising, is there a copy of the pro forma document used for the original deed available?
  3. Seek advice from lawyers to see what options you may have.

Can my client just sign a new deed by ordering a Discretionary Trust from Smartcorp?

No, signing a new deed would establish a new trust. The assets of the old trust would then need to be transferred to the new trust. Legal and accounting advice would be necessary.

Could the Trust be wound up?

Yes. This may be the best option if the trustee has no information about the terms of the lost trust deed. There may be tax implications. If the trust had assets then there may be tax and stamp duty consequences if those assets are transferred to another trust or to beneficiaries. Professional advice should be obtained.

Is a signed and stamped copy of the deed a substitute for the original lost deed?

Generally, yes. An unsigned copy of the trust deed along with file notes or other contemporaneous documents may also be sufficient to reconstitute the terms of the trust deed (see below).

What about a Replica Deed/Deed of Restatement?

If you are able to determine the solicitors or document provider who prepared the original trust deed, they may be able to obtain a template form of deed used at the time the trust was established. If not, they may be able to obtain a copy of a deed drafted for another client at about the same time.

If a template form of deed can be located, additional documentation must be prepared to confirm that the template form of deed reflects or restates the terms of the original lost deed and, if applicable, to attempt to have the template form of the deed stamped as a replica. This may include seeking a private ruling from the relevant revenue office in relation to the trust deed and/or from the Australia Taxation Office to ensure that no resettlement issues arise from that documentation. A revenue office may require evidence of payment of stamp duty and evidence that the trust has been in existence from establishment (for example, income tax returns, minutes and other documents).

What about a Court Order?

Alternatively, and to resolve most issues, a successful application to the Supreme Court under the relevant State or Territory trustee act may result in orders being made to the effect that the terms of a new restated trust deed attached to the order constitute the trust deed. If the trust holds significant assets, this may be the best option provided there is sufficient evidence relating to the trust and its affairs.

What needs to be done if a Trustee, Appointor, Unit Holder or Named Beneficiary Changes their Name?

If a trustee, appointor, unit holder or named beneficiary in a trust changes their Given or Family names, documentation such as a change of name or marriage certificate, should be retained in the trust’s records to evidence the change in legal name.

Third parties such as a bank, may require this documentation to confirm that the person who changed their name is the same person listed in the trust deed.

If a third party is not satisfied with the documentation held in the trust’s records, or there is a mistake in the spelling of the person’s name, then a deed confirming the identity of that person is usually prepared, subject to the requirements of the third party.

What needs to be done if a Trustee or Appointor Changes their Address?

If a trustee or appointor of a discretionary trust changes their residential address, this information should be recorded in the Trust’s records and a resolution noting the change, passed by the trustee. An amendment to the trust deed is not required to confirm a change of address, however a resolution may be passed at meeting of the trustee(s) to acknowledge the change of address.

Who is the Settlor of a discretionary trust?

The settlor of a trust is the person who is named in the deed and must pay the settled sum to the trustee. The settled sum is held on trust for the benefit of the beneficiaries in accordance with the terms of the trust deed. When the settled sum has been paid to the trustee and the trust deed has been executed by the relevant parties, the trust is established.

To avoid some undesirable consequences, neither the settlor nor their children should be beneficiaries. As many discretionary (family) trusts provide for a wide class of beneficiaries including any relatives, the settlor should not be related to the beneficiaries.

Who is the Appointor of a Discretionary Trust?

In a discretionary trust, the appointor is usually the person who has the power to remove and appoint the trustee of the trust. Some trust deeds may provide additional powers to the appointor, such as the power to limit certain actions of the trustee (e.g. amending the trust deed).

Serious consideration should be given to the identity of the appointor prior to the establishment of a trust and afterwards.

How are beneficiaries excluded in a Discretionary Trust?

To avoid foreign purchaser stamp duty and foreign owner land tax in some jurisdictions, it is necessary to permanently exclude foreign beneficiaries. This can be done by excluding those beneficiaries who fall within the definition in the relevant stamp duty or land tax law.

Other reasons to exclude a beneficiary may be to minimise the possibility of a particular person benefitting from the trust.

In Smartcorp’s discretionary trust deed, Excluded persons are listed in Schedule 3 of the deed. To exclude a beneficiary or class of beneficiaries, enter their details in the discretionary trust order form where specified.

What is a NSW Land Tax Specific Unit Trust?

The NSW Land Tax Unit Trust has been prepared to comply with the “relevant criteria” set out in section 3A(3B) of the Land Tax Management Act 1956 (NSW). Under the deed the unit holders are presently entitled to the income and capital of the trust and those entitlements cannot be varied by the trustee.

What happens if the Unit Trust meets the “relevant criteria”?

While the trustee of the Unit Trust is still assessed for land tax, the trustee would be entitled to the land tax threshold and would only be liable for land tax if its land holdings are more than the land tax threshold.

However, the unitholders are then deemed to be the legal owners of the land that is held by the Unit Trust in their respective portion of units that they hold. The unit holder’s interest in the land is added to the unit holder’s other taxable land, and the unit holder is then assessed on the combined value of their interest of the land held in the trust and any other taxable land owned.

If that unit holder is entitled to the land tax threshold then that would be applied in the usual way e.g. unit trusts that meet the “relevant criteria”, individuals, SMSFs. If that unit holder is not entitled to the land tax threshold e.g. because it is a special trust, then the unit holder would be assessed in the usual way.

If the Unit Trust Trustee pays land tax, the unit holders would be entitled to a secondary taxpayer deduction to take this payment into account.

What happens if the Unit Trust does not meet the “relevant criteria”?

If you currently hold a unit trust deed that does not comply with the “relevant criteria” set out in section 3A(3B) of the Land Tax Management Act 1956 (NSW) and Revenue NSW has assessed the unit trust as a “special trust”, then an amendment to the unit trust deed will need to be prepared to allow the unit holders to obtain the land tax threshold for the next land tax year.

What if a discretionary trust wants to meet the “relevant criteria”?

This may be possible however professional advice as to any stamp duty and tax consequences should be obtained. Extensive changes are normally needed to do this.

How is a discretionary or unit trust wound up?

If you want to close a discretionary or unit trust, the trust deed should be carefully reviewed to determine the procedure for vesting or winding up.

Usually the trustee and /or unit holders (if a unit trust) will pass resolutions to specify a vesting date, which is the date that the trust will distribute the remainder of the trust fund to:-

  1. a beneficiary or beneficiaries in a discretionary trust; or
  2. the unit holders in a unit trust

If the trustee has paid all liabilities of the trust and the appropriate resolutions have been passed to distribute the remainder of the trust fund, then a final tax return can then be lodged with the ATO and the trust wound up. In some cases, publication of a notice in a daily newspaper may be advisable.

Self-managed Superannuation Funds (SMSF)

What do I do if my client has lost their original Self-Managed Superannuation Governing Rules?

Assuming that a thorough search has been made for the original deed, other options are:

  1. Is there a copy of the original executed deed? Make enquiries of the banks that the trustee has dealt with, lawyers who acted on a purchase for the trustee etc.
  2. Who provided the original trust deed? If the document provider or lawyers are still in existence or practising, is there a copy of the pro forma document that was used for the original deed available?
  3. Seek advice from lawyers to see what options you may have.

Can my client just sign a new superannuation deed by ordering an SMSF from Smartcorp?

No, signing a new deed would establish a new superannuation fund. The assets of the old fund would then need to be transferred to the new fund. Legal and accounting advice would be necessary to do this.

Can my client update the Governing Rules?

It is possible to sign an amending deed adopting new governing rules, however without the prior deed(s) there is no certainty that the governing rules have been amended as required by the old deed(s). The amendments may be of no legal effect or may not be accepted by the ATO, a lender or the SMSF auditor.

Some auditors may only require the “updated” superannuation governing rules instead of requiring all the old deeds from the date of establishment of the fund, however this does not resolve the question of whether the updated deed was made in accordance with the procedure of the previous deed(s). The ATO or another authority may still require all the deeds.

Could the Trustee wind up the Fund?

If insufficient information is known about the SMSF and its governing rules, it may be best to wind-up and rollover its assets over to a new fund. Although this does not deal with the missing deed(s), the new SMSF would have a deed establishing it from inception.

What about a Court Order?

Alternatively, and to resolve any issues beyond doubt, a successful application to the Supreme Court under the relevant State or Territory trustee act may result in orders being made to the effect that the terms of a new restated SMSF deed attached to the order constitute the trust deed. If the fund holds significant assets, this may be the best option provided there is sufficient evidence relating to the fund and its affairs.

What should be considered when changing trustees of an SMSF?

It is important that the provisions of the deed are followed carefully and these usually vary from deed to deed. In addition, it is important to be aware of the provisions of the Superannuation Industry (Supervision) Act concerning the requirements as to who may be a trustee of the Fund, to make sure these provisions are not inadvertently breached when trustees change.

Key provisions of section 17A of the SIS Act: If the trustees are individuals, each trustee must be a member of the SMSF (and each member must also be a trustee) and that there be no other trustees or members, except in the case of a sole member fund. In a sole member fund, one other individual trustee is required who does not employ the member, unless they are related.

For corporate trustees, each director of the trustee company must be a member of the fund (and each member must also be director of the trustee company) except for sole member funds. In sole member funds, the member may be the sole director of the trustee company or they may be one of only two directors and the second director must not employ the member, unless they are related.

Also, no trustee of the fund is permitted to receive any remuneration from the fund for any services performed in relation to the fund.

If the trustees are changing from individuals to a corporate trustee, you can register the trustee company through Smartcorp. If the company will be acting solely as the trustee of the SMSF, answer Yes to this question on the Smartcorp company order form.

When can an SMSF be wound up?

Smartcorp’s SMSF deed states that, subject to the Superannuation Conditions and if required, with the consent of the members, the fund may be wound up by the trustee when any of the following events occurs:

  1. if there are no assets of the Fund;
  2. if there are no Beneficiaries of the Fund;
  3. all Members agree to wind up the Trust; or
  4. the Trustee determines that it is not reasonably justified to continue to operate the Fund or when the Superannuation Conditions require it.

The method for winding up an SMSF is governed by superannuation law and the fund's deed.

The trustee is responsible for dealing with all the assets of the fund and member benefits. The trustee must ensure that conditions of release have been met before paying out benefits. Conditions of release are circumstances, such as retirement, which allow members to access their superannuation benefits. If member balances are transferred or rolled over to another fund, the trustee must ensure that the other fund is a complying superannuation fund.

When all member balances have been paid out or rolled over or transferred to another fund and any costs or other liabilities satisfied, the fund may be wound up.

The fund also needs to lodge its final tax return and the trustee resolve and ensure that all required steps are taken. Some trustee responsibilities continue after the fund is wound up, for example the need to keep records, some for many years.

Can an SMSF Trustee borrow to purchase assets?

An SMSF Trustee may in very limited circumstances under section 67A of the Superannuation Industry (Supervision) Act 1993 (Cth) borrow to purchase certain assets under a “limited recourse” loan. These arrangements are sometimes known as borrowing trusts.

What is a “limited recourse” loan?

Generally, the only remedy for the lender, if there is a default, is from the property purchased with the loan proceeds and not from any other assets of the SMSF.

Can the SMSF Trustee borrow from a related party?

A loan from a related party must be made on an arm’s length basis.

If a related party loan complies with the safe harbour provisions of PCG 2016/5, the ATO will accept that the terms of the limited recourse borrowing arrangement is consistent with an arm’s length dealing.

Is stamp duty payable when an SMSF has to hold the property in a “bare” trust?

A borrowing trust that complies with s67A of the SIS Act is not strictly a “bare trust”, it is similar. The Custodian Trustee or Security Trustee holds the legal title for the SMSF Trustee.

Some States do not require the “bare trust” to be stamped. In most States and Territories, the duty is concessional (e.g. maximum being $500 in NSW) if it can be shown that the purchase price of the asset, and legal costs were paid by the SMSF Trustee and/or the limited recourse loan. This can be complex. Professional advice is recommended.

Must the Custodian Trustee transfer the asset to the SMSF Trustee when the Loan is repaid?

Yes, if the SMSF Trustee requires it. Stamp duty issues must be considered. Again, under most State and Territory legislation, concessional duty applies on transfer between a custodian of a SMSF and the SMSF Trustee.

What is the jurisdiction of a bare trust?

The jurisdiction of a bare trust for SMSF borrowing may be chosen and included in the trust deed. In choosing the jurisdiction (the State or Territory of jurisdiction) the place where the property is to be purchased is a relevant consideration, amongst others. Real estate bought in a particular state will be the subject of the laws of that state, such as stamp duty and land tax laws, in connection with the purchase. These laws apply despite the jurisdiction of the trust.

In a Smartcorp bare trust for SMSF borrowing, the jurisdiction is included in the trust deed and defaults to the state in which the asset is located. If this is not appropriate, the deed will need to be amended.

Disclaimer: Smartcorp is not and does not act as a legal adviser. This information is provided by our solicitors, DGF Morgan & Associates Pty Ltd and is intended only for informational purposes, is general in nature, and it not intended to be a substitute for and should not be relied upon or construed as a legal opinion or legal advice regarding any specific issue or factual circumstance.

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Company Registration

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  • Proposed name of company (preferably include 2nd and 3rd choices as well)
  • The State or Territory Company will be taken to be registered
  • If the proposed name is identical to a registered business name and all the owners of the business name are to be members of the company:

    State or Territory of registration and Registered business number (if business registered prior to 28 May 2012)  OR

    Australian business number (if business registered on or after 28 May 2012)
  • Type of company - standard Pty Ltd or special purpose SMSF trustee
  • Registered office address of the company (not a PO Box) including occupier's name if company will not be occupying the address
  • Principal Place of Business of the company (not a PO Box)
  • If there is to be an ultimate holding company on registration, its name and ACN/ABN or ARBN and country of incorporation (if not Australia)
  • For officeholders and shareholders - full name (+ACN if a corporate shareholder), residential address and date and place of birth (town and state if within Australia, country only if overseas)
  • For officeholders - whether they are to be Director, Secretary or both.  (Note: The office of secretary is optional, but if appointed one must reside in Australia)
  • For shareholders - number and class of shares, paid and unpaid amounts and whether or not the shares will be held beneficially
  • Type of register - electronic documents only, presentation folder or full register
  • Would you like an extra copy of the company documents emailed directly to your client
  • For an additional fee, would you like a common seal
  • Would you like your firm's name and address printed on the cover of the company constitution
  • Would you like the ASIC administration of the company to be done through Corpliance, SmartCorp's online ASIC compliance service

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Unit Trust

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  • Name of Trust. Must not end with 'Pty Limited'. The Trust name does not have to include the word 'Trust', but usually does.
  • Jurisdiction (normally the State or Territory where the Trustee and other parties who sign the deed are located)
  • Full name (and ACN if a company) and address of Trustee. Can be either two or more individuals, or a company. Sole individual Trustees are not permitted.
  • Chairperson of Trustee (for minutes)
  • Names of unit holders. May be individuals, companies, trusts or superannuation funds. Charities are not normally included. If a trust or superannuation fund is holding the units, you must also enter the name of the Trustee of the trust or superannuation fund including its ACN (if a company).
  • Type of register - electronic documents only, presentation folder or full register.
  • Would you like an extra copy of the trust documents emailed directly to your client?
  • Would you like your firm's name and address printed on the cover of the deed?

SMSF Establishment

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  • Name of Fund.  Must not end with Pty Limited. The name does not have to include the words, 'Superannuation Fund' but usually does.
  • Jurisdiction. Normally the State or Territory where the Trustee and Members are located.
  • Full Name (and ACN if a company) and address of Trustee(s). A corporate trustee is preferable.

    (i)  For a corporate Trustee, full names of directors.  All the directors of the company must be Members of the Fund and there must be no other directors.  Each director must not employ any other Member, unless they are related.
    In a sole Member fund, that Member may be the sole director of the corporate Trustee or there may be one other director, who must not employ the Member, unless they are related.
    (ii)  For individual Trustees, all Trustees must be Members of the Fund and none of the Trustees must employ any other Member, unless they are related.
    In a sole Member fund, two Trustees are required, one of whom must be the Member.  The second Trustee must be over 18 years of age (DOB required) and must not employ the Member, unless they are related.
  • For any employer who will be contributing to the Fund, their name (and ACN if a company) and address and if the employer is a company, the full names of all directors (required for Minutes).
  • A SMSF has a maximum of four Members.  For each Member, their full name and address, sex and date of birth as well as their marital status and date of commencement of employment, if known.
  • Type of register - electronic documents only, presentation folder or full register
  • Would you like an extra copy of the trust documents emailed directly to your client
  • Would you like your firm's name and address printed on the cover of the deed

SMSF Deed Update

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  • Name of Fund
  • Jurisdiction. Normally the State or Territory where the Trustee and Members are located.
  • Type of Fund (Employer Sponsored or Self Employed/Gainfully Occupied).  After updating, the office of Principal Employer will cease to exist for Employer Sponsored funds. The former Principal Employer may still make contributions to the Fund as a Contributing Employer.
  • Name of parties who have power to amend the deed (e.g. Trustee)
  • Clause number in deed stating which parties have power to amend the deed.
  • Full Name (and ACN if a company) and address of Principal Employer (if any)
  • For any other employer who contributes to the Fund, their name (and ACN if a company) and address and if the employer is a company, the full names of all directors (required for Minutes).
  • Full Name and address of each Member of the Fund.
  • Full Name (and ACN if a company) and address of Trustee(s). If Corporate Trustee, full names of directors.
  • Type of register - electronic documents or hard copy
  • Would you like your firm's name and address printed on the cover of the deed?

An email with the Terms & Conditions has been sent.

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Discretionary Trust

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  • Name of Trust. Must not end with Pty Limited. The Trust name does not have to include the word 'Trust', but usually does
  • Jurisdiction (normally the State or Territory where the Trustee and other parties who sign the deed are located)
  • Full name (and ACN if a company) and address of Trustee. A corporate Trustee is preferable. If not a company, at least two individuals are preferred
  • Chairperson of Trustee (for minutes)
  • Full name (and ACN if a company) and address of Appointor(s). The Appointor has the power to appoint and remove the Trustee.

  • The Settlor must be an individual 18 years of age or over. A company cannot act as Settlor. They must be at arm's length from the trust and are not permitted to benefit from the trust; therefore they cannot also be the Trustee, the Appointor or a beneficiary of the trust. The Settlor should not be acting as the Agent of the person establishing the trust

  • Settled sum. A dollar amount must be specified. The settled sum is usually only a nominal amount ($10 or $20). The settled sum should be paid from the Settlor's own funds and should not be reimbursed either directly or indirectly by any other person.
  • Names of beneficiaries and any persons to be excluded as beneficiaries (if required)
  • Type of register - electronic documents only, presentation folder or full register
  • Would you like an extra copy of the trust documents emailed directly to your client
  • Would you like your firm's name and address printed on the cover of the deed

SMSF Borrowing Trust

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  • Name of SMSF Borrowing Trust
  • Jurisdiction.  Normally the State or Territory where the Trustee and Members are located.
  • Name of SMSF
  • Name of SMSF Borrowing Trust
  • Full Name, ACN and address of Custodian Trustee (Trustee of the Borrowing Trust).  The Custodian Trustee must be a company; Individual Trustees are not permitted.  The Custodian Trustee must not also be the Trustee of the SMSF.
  • Full Names of Directors of Custodian Trustee, one to be appointed as Chairperson (Address to be provided)
  • Address of the asset to be purchased
  • Legal Description of the asset (eg Lot and DP number) if known.
  • Full Name, ACN (if a company) and address of Trustee(s) of SMSF.  If Corporate Trustee, full names of all directors, one to be appointed as Chairperson.
  • Would you like an extra copy of the trust documents emailed directly to your client

Enquiry

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