As a general guide, SMSF trust deeds should be updated every 4–5 years, or sooner in the case of major legislative change.
The last major legislative change to superannuation that warranted a blanket update for all SMSF trust deeds occurred in mid-2007, and the Federal Government’s proposed superannuation reforms are of similar magnitude, particularly in respect of the $1.6 million transfer balance cap measure.
Once these reforms are finalised (expected by mid 2017), then all SMSFs should be considering an SMSF deed update.
Some clients do not like to rely on the above general guidance, and to answer their concerns properly, it would be necessary to undertake a full review of the fund’s current governing rules.
Unfortunately, such a review may not be a cost effective exercise, as a proper legal review process itself is likely to be more costly than simply updating the deed.
This situation can create something of a dilemma for advisers with SMSF clients, as they may be unable to furnish the evidence that their clients would ideally like to have before them for the purposes of making an informed decision about updating their SMSF trust deed.
In any event, as discussed above, following the finalisation of the current reforms, most SMSF deeds will need updating. Following the update for the mid-2017 reform proposals, we would then expect the general guide of a 4–5 year update to be applicable.
For those advisers with clients using an existing DBA Lawyers’ deed, we provide periodic email updates outlining the superannuation law changes and other enhancements that have been implemented in our current SMSF trust deed since the fund’s deed was last updated.
However, to address this issue more broadly for others clients, DBA Lawyers has developed a checklist to help advisers and their staff assess whether an SMSF trust deed should be updated so they can better communicate with their SMSF clients about the appropriateness of their existing SMSF trust deeds.
The checklist can be combined with other informational tools, such as a chronological summary of major superannuation changes, to help provide more concrete guidance on the factors to consider in weighing up whether an SMSF trust deed is outdated or inappropriate.
The checklist provides general guidance only and is not a substitute for considered advice. Further, the checklist will be updated once the current reforms are finalised.