Thinking of starting your own self managed super fund (SMSF)? Not only will you be a member of the fund, but you'll either be a trustee or director of the fund too. Whether you're a trustee or a director will depend on which trustee structure you choose to go with when setting up your SMSF.
Let's go through the two different types of SMSF trustee structures you can choose between and the obligations and responsibilities of SMSF trustees.
All SMSFs must have between one and four members. Members are usually family members and are the people who contribute to the fund throughout their working life and benefit from the fund in retirement.
All SMSFs must also have a trustee, who is responsible for managing the fund's assets and ensuring the fund meets its legal and tax requirements. Members have the choice between two trustee structures: an individual trustee structure or a corporate trustee (also known as a company trustee).
Let's take a look at the differences between each trustee structure and the pros and cons of each in more detail. It's important to choose the option that is right for you, as this will affect the cost of the fund and how it's managed.
This structure involves the members of the fund (two to four members) also acting as individual trustees for the fund. If you're the only member of your SMSF you can still opt for this structure, but you'll need to find one other person to act as a trustee of your fund along with you.
The fund assets (for example investments like shares and property) are registered under the names of the individual trustees (who are also the fund members). Let's say Bob, Jeff and Mary set up their own SMSF and choose to be the individual trustees of the fund. The assets will be registered under Bob, Jeff and Mary. This option is usually lower in management costs but has more admin duties which can become expensive.
Here, the SMSF members elect a company to act as the trustee of the fund instead of being the trustees themselves. With this structure, the SMSF members are not considered trustees, but they must be directors of the fund.
The assets are registered under the company instead of under the individual names of the members. For example, instead of the assets being registered under Bob, Jeff and Mary's names they'd be registered under "Company Name Pty Ltd".
If you are the only member of the SMSF, you can act as the sole director. As you need to hire a company to act as the trustee, this option can be more expensive. However, you won't need to edit the asset ownership documents when fund members join or leave, as the assets are simply registered under the company name.
Anyone over the age of 18 is legally able to be the trustee of an SMSF. If you're the member of an SMSF, you can be the trustee of the SMSF too if you've opted for an individual trustee structure as opposed to a corporeal trustee structure (which is a company). But just because you're able to be a trustee, doesn't mean you should be. Make sure you understand all the legal requirements and responsibilities before your agree to be trustee of your SMSF.
Regardless of which trustee structure you choose, there are obligations that trustees need to meet. Even if you choose a corporate trustee, all SMSF members are personally liable for all the decisions made by the fund.
Here are some of the main obligations of SMSF trustees:
The trust deed is a legal document outlining the rules and objectives of the SMSF including how it will be managed. This must be prepared by a professional (such as an SMSF administrator or a tax agent), under the guidance of the trustee.
The trustee declaration highlights the responsibilities of all trustees as regulated by the ATO. Each SMSF trustee and director must sign and date their own declaration within 21 days of joining the fund.
Trustees are responsible for ensuring that the fund is run solely for the purpose of funding the retirement of its members and not for any other reason (eg to access attractive tax concessions).
Trustees create the fund's investment strategy to ensure the fund is likely to meet the retirement needs of its members. Trustees also review the investment strategy on an ongoing basis and adjust this when the needs of members change. You can read more about setting an SMSF investment strategy here.
As well as ensuring the investments are in the best interests of members, the trustee also makes sure these investments meet legal requirements. For example, members of an SMSF cannot invest in a property and rent it out to a family member.
Trustees need to make sure that members' personal assets and finances are kept entirely separate from the fund's assets and finances. This is a legal obligation of all SMSFs.
Trustees are responsible for accepting and managing all contributions from fund members, including personal contributions and contributions from employers as part of the compulsory super guarantee. When members of the fund retire, trustees also need to manage their benefit payments now that they're able to access their super.
All SMSFs need to be audited annually by an approved SMSF auditor. Trustees must arrange this audit each year and report this to the ATO.
Trustees are responsible for keeping all the legal documents, such as tax records and trustee declarations, securely and safely on file. Most of these records should be kept for five to ten years. Some other records to keep on file include the written investment strategy, meeting notes from any official meetings with members and any penalties paid by the fund.
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