Replace a lost SMSF deed
Replace a lost SMSF deed on our law firm's website. If you lost an SMSF trust deed you can build a replacement on our law firm website.
Lost SMSF Deed
The Deed of Confirmation and Restitution replaces your lost SMSF trust deed. It provides the trustees with a new trust deed to govern the Self-Managed Superannuation Fund.
Do I need to replace an SMSF deed?
The Trustee, as with all trusts, operates and looks after the trust. However, the Trustee needs a set of rules. This is so the Trustee knows what to do. The rules for an SMSF are contained in the trust deed. You have lost the trust deed, so you need to replace it.
If you continue to operate your SMSF without a trust deed you are in breach of the Superannuation Industry (Supervision) Regulations 1994 (SIS). This is because the Trustee can't prove that the Trustee is following the rules - as there are no rules. However, the SIS requires rules. Further, neither your lawyer, accountant nor auditor will want to be involved with your 'lawless' SMSF. As soon as you realize that the SMSF Deed is lost build a replacement.
Don't I need a Court order to replace a lost SMSF Deed?
The Supreme Court in Re Bowmil Nominees Pty Ltd  NSWSC 161 gives support to the proposition that irrespective of what the lost deed stated or required, if:
1. all of the members;
2. all the beneficiaries of the SMSF;
3. are all adults;
4. are all of sound mind;
5. sign a Deed of Confirmation and Restitution
that Deed of Variation is effective to replace the lost SMSF Deed.
For our full legal advice on this read our covering letter contained in the Sample document (just press the "Sample" button above).
Your Replacement SMSF Deed also updates your Fund for the latest rules. Your replacement Deed includes the latest 15 changes to SMSF Deeds required for the latest Budget:
- Internally ‘rollback’ pensions to accumulation;
- Segregate assets between accumulation and pension phases;
- Reject contributions;
- Refund contributions;
- Deal with excess transfer balance tax and excess non-concessional contributions;
- Allow income streams and Account Based Pension (grandfathered);
- Specify guardians for incapacity and death requires SMSF update;
- Identify the Power of Attorney when living overseas for more than 2 years;
- Resettle pensions with flexible timing without mingling with accumulation account;
- Allow reversionary beneficiary nominations;
- Provide for CGT relief;
- Deal with segregated and unsegregated assets;
- Cease or keep Transition to Retirement Income Streams;
- Calculate member balances, across different funds; and
- Calculate internal pension rollbacks to accumulation.
The SMSF update is required to give maximum flexibility to your accountant and adviser.
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Adjunct Professor, Dr Brett Davies, CTA, AIAMA, BJuris, LLB, LLM, MBA, SJD
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