Keeping track of all documents relating to an SMSF trust deed is important if an estate planning issue arises, says an industry expert.
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Scott Hay-Bartlem, partner at Cooper Grace Ward Lawyers and board member of the SMSFA, said being able to physically produce documents, including trust deeds, reversionary pension information, death benefit documents, and even living wills, need to be kept safe and secure, but also be ready at hand when needed.
“They're not testamentary documents, but they are like wills and we need to treat them seriously to be able to find them and have them there,” he said.
“The trust deed is probably the most obvious document and it's the starting point that most people will think about and will be focused on but that's not the only important document that needs to be kept in a safe place, and re-read.”
Pension documents are another important document that is needed in an SMSF, he said, and most people are not familiar with what it is.
“One of the problems with pension documents is that if you are dealing with an old one and if you have a defined pension still going and you claim it is reversionary, you’re going to have to find the original pension documents,” he said.
“How many of us can find documents from the ‘90s? If you’re trying to prove your pension is reversionary, without your documents that have the reversion in them, you may be in trouble.”
He added other SMSF documents are important and it is ideal to do a regular audit of all documentation to ensure they have been signed properly and still meet the needs of the members of the fund.
“In the case of things like trust deeds, it's easy to see that we have the director sign or a principle employer sign who has to sign, but when you're looking at things like resolutions, if we've got a resolution accepting a binding death benefit nomination, that's got to be accepted by the trustee,” he said.
“But we see all the time where the resolutions and the minutes don’t reflect trusteeship – does it actually work? In court cases, you have to be able to hold these up and make sure everything is consistent.”
Mr Hay-Bartlem said some obvious documents need to be reviewed and audited regularly including things like trustee variations and pension documents, but these are often overlooked.
“Binding death nominations is another obvious one. Another one that I am finding is catching people out is the annual trustee resolution,” he said.
“Do you read them? Do you think it is correct? Is it the same one you used last year? Is it the same on all files? These questions need to be asked and answered.”
Keeli Cambourne
29 February 2024
smsfadviser.com
