All Topics / Legal & Accounting / Superannuation- Self managed super fund last will and testament (SMSF)

Viewing 20 posts - 1 through 20 (of 37 total)
  • Profile photo of Istvan051Istvan051
    Member
    @istvan051
    Join Date: 2005
    Post Count: 221

    Towards the end of this video this lawyer talks about a way to give your supperannuation for sure to your children/spouces in any fashion other than a binding nomination. This arrangment does not expire after three years like a binding nomination. But, you need to have a family trust.

    http://www.youtube.com/watch?v=V3lDbCh-LNw&feature=related

    Its called a "Self managed super fund last will and testament"

    He says you are able to type in the trust deed how you want your superannuation death benefit distributed.

    Does anyone else know of these?

    Profile photo of Istvan051Istvan051
    Member
    @istvan051
    Join Date: 2005
    Post Count: 221

    Also here is an example of one of these forms I found on google

    http://www.civiclegal.com.au/Publications/SMSFWill.pdf

    Profile photo of Istvan051Istvan051
    Member
    @istvan051
    Join Date: 2005
    Post Count: 221
    Profile photo of Istvan051Istvan051
    Member
    @istvan051
    Join Date: 2005
    Post Count: 221

    So my understanding is that these are a form you may fill if you have a trust deed so that your superannuation death benefits WILL be paid in a certain way without discretion of a trustee from a supperannuation company. I suppose this would be attached to your trust deed or it would be worded into the trust deed. Also they last for many years. (i.e. not just three)

    Correct?

    Profile photo of TerrywTerryw
    Participant
    @terryw
    Join Date: 2001
    Post Count: 16,213

    I haven't watched the video but think you are misunderstanding a bit.

    A super fund is a trust. A SMSF is a super trust that you set up yourself and manage yourself (often with other family members). Since the SMSF is a trust you can have the deed decide how the funds are dealt with on your death.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
    http://www.Structuring.com.au
    Email Me

    Lawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au

    Profile photo of Istvan051Istvan051
    Member
    @istvan051
    Join Date: 2005
    Post Count: 221

    Okay, sorry that makes more sense now. So a SMSF is a separate trust you create in order to deal specifically with your supperannuation affairs. This would contain a trust deed which deals with the death benefit nomination in a way which lasts indefinetley and does not require a binding nomination completed.

    So if you had three supperannation accounts you would transfer all these to a SMSF at which point they become managed by the trustee of the SMSF (Yourself)?

    Also if you already have a family trust then that deals with other forms of wealth such as property and cash….Or can they become all one single trust?

    Profile photo of TerrywTerryw
    Participant
    @terryw
    Join Date: 2001
    Post Count: 16,213

    All members of a SMSF need to be trustee or, there could be a company as trustee.

    Other trusts will be separate from the superfund. There various tax and legal implications of transferring non super assets into super, but you could set up your trusts so that you can easily transfer assets into the SMSF later on as you approach retirement.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
    http://www.Structuring.com.au
    Email Me

    Lawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au

    Profile photo of Istvan051Istvan051
    Member
    @istvan051
    Join Date: 2005
    Post Count: 221

    Yes okay, thanks. I just saw something talking about buying property in a SMSF. A little confusing right now but okay. The main thing I want to gain and take away from this is that the instructions in a trust deed of a SMSF is equivalent to a binding nomination. The good thing is that the instructions on the trust deed will last forever. (not just three years)

    Also as in my case the SMSF may include multiple super funds with various super companies….

    Cheers

    Profile photo of bjsaustbjsaust
    Participant
    @bjsaust
    Join Date: 2009
    Post Count: 141

    I think you're confused. I can't think of any reason why you'd set up a SMSF and then invest that money in commercial super funds. If nothing else, you're layering in an extra set of fees and charges.  One of the main reasons for setting up a SMSF is to get your money  out of the hands of commercial super funds.

    Do you just mean managed funds, or is there some reason you're going to set it up this way?

    Profile photo of Istvan051Istvan051
    Member
    @istvan051
    Join Date: 2005
    Post Count: 221

    My main interest is for the purpose of creating a last will and testament which is equivalent to a binding nomination.
    If you spend some money creating a SMSF then you are able to effectively create a set of death benefit instructions in the SMSF trust deed in your will which dont have to updated every three years as in the case of a standard binding nomination.

    That was my understanding of it all according to the youtube video on my first post….

    Oh, I see, So the SMSF requires you to transfer all your money out of your commercial super funds into a single fund held by the SMSF trust which the trustee (yourself) manages.??

    I suppose also as in any other trust upon creation you would make yourself appointer and then appoint yourself as trustee

    Profile photo of Rob G.Rob G.
    Participant
    @rob-g.
    Join Date: 2010
    Post Count: 70
    Ishtvan051 wrote:
    My main interest is for the purpose of creating a last will and testament which is equivalent to a binding nomination.
    If you spend some money creating a SMSF then you are able to effectively create a set of death benefit instructions in the SMSF trust deed in your will which dont have to updated every three years as in the case of a standard binding nomination.

    That was my understanding of it all according to the youtube video on my first post….

    Oh, I see, So the SMSF requires you to transfer all your money out of your commercial super funds into a single fund held by the SMSF trust which the trustee (yourself) manages.??

    I suppose also as in any other trust upon creation you would make yourself appointer and then appoint yourself as trustee

    A binding death benefit nomination does not necessarily lapse after three years for a SMSF.

    A super fund is only able to distribute death benefits to SIS dependants or your estate.

    Whilst a SMSF is a trust, it is a statutory one with very comprehensive legislation and severe penalties for a breach.

    Cheers,

    Rob

    Profile photo of Istvan051Istvan051
    Member
    @istvan051
    Join Date: 2005
    Post Count: 221

    "A binding death benefit nomination does not necessarily lapse after three years for a SMSF"

    Yes, thats what I meant to say, the death benefit nomination of a SMSF is a binding nomination. Also my understanding is that it does not expire and need to renewed every three years. 

    Therefore this is better then a standard supperannuation binding form which when completed lasts for three years before it needs to be renewed.  The trust deed of the SMSF death benefit nomination would not need to be updated every three years to be valid.

    Thats it….. 

    Profile photo of Istvan051Istvan051
    Member
    @istvan051
    Join Date: 2005
    Post Count: 221

    What is SIS dependant?

    Profile photo of TerrywTerryw
    Participant
    @terryw
    Join Date: 2001
    Post Count: 16,213

    SIS = SUPERANNUATION INDUSTRY (SUPERVISION) ACT 1993.
    A SIS dependent is defined at s10 http://www.austlii.edu.au/au/legis/cth/consol_act/sia1993473/s10.html
    and s10A http://www.austlii.edu.au/au/legis/cth/consol_act/sia1993473/s10a.html

    Ishtvan, I think you are confusing yourself again.

    With super there are two ways to leave the benefits.
    A. Do a binding death Nomination, or
    B. Have the deed stipulate what happens

    and probably one more:
    C. Do nothing and let the trustee decide.

    If there is no BDM then the trustee will decide on what happens. The trustee will be bound by the trust deed and the various legislation such as the SIS Act.

    Make sure you get professional advice when doing all this as a lot of money would be involved and if you get it wrong it could cost you dearly.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
    http://www.Structuring.com.au
    Email Me

    Lawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au

    Profile photo of Istvan051Istvan051
    Member
    @istvan051
    Join Date: 2005
    Post Count: 221

    Yes, I understood all that already except the SIS part. If I want to have the trust deed stipulate what happens then obviously you need to transfer the superannuation into a super trust fund such as a SMSF. We will be seeing a solicitor about all this as soon as I am able to get my father into see one. Obviously we will need to be taking option A or B. Currently the super is with three different commercial companies.

    I am leaning towards option B as it would not need to be updated so frequently.

    Also seeing as the trustee is bound by the trust deed then if there is no BDN if will have to follow the instructions on the trust deed. (as you say)

    Profile photo of Istvan051Istvan051
    Member
    @istvan051
    Join Date: 2005
    Post Count: 221

    Also my grandad is seeing a solicitor to find out who the appointers of the trust are and get it changed if nessasary.

    Also I have to get dad to write a will for his personal property held in his own name as in the case of the new wife. This will be done properly as you explained to me in the other topics. This will be mentioned and addressed when we see the solicitor.  

    Also I have detailed notes to take along with me to make sure I dont miss anything.

    .  

    Profile photo of TerrywTerryw
    Participant
    @terryw
    Join Date: 2001
    Post Count: 16,213
    Ishtvan051 wrote:

    Also my grandad is seeing a solicitor to find out who the appointers of the trust are and get it changed if nessasary.

    Also I have to get dad to write a will for his personal property held in his own name as in the case of the new wife. This will be done properly as you explained to me in the other topics. This will be mentioned and addressed when we see the solicitor.  

    Also I have detailed notes to take along with me to make sure I dont miss anything.

    .  

    Get your dad to consider settng up a testamentary trust in his will as there can be big tax advantages as well as asset protectiona advantages. The will can be worded so that there is an option to take property outright or have it go into a trust.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
    http://www.Structuring.com.au
    Email Me

    Lawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au

    Profile photo of Istvan051Istvan051
    Member
    @istvan051
    Join Date: 2005
    Post Count: 221

    Okay, will do.

    Profile photo of Istvan051Istvan051
    Member
    @istvan051
    Join Date: 2005
    Post Count: 221

    "The will can be worded so that there is an option to take property outright or have it go into a trust"

    For example, the wife may only want to have her share of the property taken out in her own name however I may want my share of the property put directly into a trust.

    This would be an example of a future tax saving as it means down the track I dont have to pay CGT if I actually do want to transfer it into a trust from my own name.

    Profile photo of TerrywTerryw
    Participant
    @terryw
    Join Date: 2001
    Post Count: 16,213

    Yes, The good part is that you don't decided now, but when the estate is being administered.

    Or you may want to take the PPOR as your PPOR because you can get the land tax and main residence exemptions, but you may want the rest in a trust for tax minimisation.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
    http://www.Structuring.com.au
    Email Me

    Lawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au

Viewing 20 posts - 1 through 20 (of 37 total)

You must be logged in to reply to this topic. If you don't have an account, you can register here.