Update your Self-Managed Super Fund (SMSF) deed
The deed decides what your fund is allowed to do, and it was written a long time ago.Nobody reads their SMSF deed until the fund needs to do something. Then the accountant asks for a pension the deed does not contemplate, or a binding nomination it never provided for. The gap between what the law now allows and what your deed permits becomes the reason you cannot proceed. Superannuation law has moved a long way in a decade, and a deed drafted before those changes does not pick them up on its own. We read the deed you have, tell you what it stops you doing, and amend it so it stops you no longer.
The powers you will need
Pensions, binding nominations and borrowing become available to the fund because the deed provides for them, not merely because the law allows them.
Amended, not replaced
The gaps close and the arrangements you chose deliberately stay exactly where you put them.
Effective when it is signed
The amendment follows the execution route your existing deed requires, which is what makes it bind.
Why does an SMSF deed need updating?
Your SMSF deed is the fund’s own rulebook. Superannuation law sets the outer limit of what any fund may do, but the deed decides what your fund may do. A deed only ever offers what it was drafted to offer.
Pension rules, binding death benefit nominations and borrowing powers have all changed substantially over the past decade. A deed written before those changes simply does not contain them. Where the law and the deed disagree, the narrower of the two governs. That is why a fund can find itself barred from something the law plainly permits.
How do I know if my deed needs updating?
If it was drafted more than about five years ago, it probably does. The same goes if it has not been looked at since the last round of superannuation changes. The common signs are pension provisions that predate the current rules, no workable binding nomination clause, and no borrowing power. References to legislation that has since been replaced are another.
What does an update involve?
Usually a Deed of Amendment that sits alongside your existing deed, or occasionally a full replacement where the original is too dated to amend cleanly. Either way it has to be executed the way your current deed says amendments must be executed, or it does not take effect.
Can I use a template I found online?
You can, and it is the most common way a deed update fails. A template does not know what your existing deed says, so it can contradict provisions you have relied on or leave the amendment power unsatisfied. Either outcome leaves you worse off than before, while looking like it worked.
Do all the members have to agree?
It depends on your deed. Most allow the trustees to amend it, some require member consent or a particular procedure, and a few restrict what can be changed at all. We check that before drafting anything.
When was your deed last looked at?
Send us the deed you have. We will tell you what it currently stops your fund doing, and whether that is worth fixing now.
An old deed fails on the day you need it most
Your fund has run for years on the deed it was set up with. You have no particular reason to think it is a problem until something is refused. A binding nomination the deed does not properly support, a pension it does not contemplate, a borrowing power it never conferred. The moment you find out is usually the moment you needed it to work.
- We will read your current deed and tell you what it is missing.
- We will prepare a Deed of Amendment or a replacement deed.
- We will bring the deed into line with the current superannuation law.
- We will set out the execution steps your existing deed requires.
- We will provide the trustee resolutions and advise on member consents.
You have been told the deed needs looking at
Your fund has ticked along for years and the deed has not been opened since it was signed. Your accountant has raised it. Or you have tried to do something specific: a transition to retirement pension, a binding nomination, an LRBA. Each time you have been told the deed may not give you the power. You do not want a replacement deed that quietly changes things you settled deliberately years ago. You want the gaps closed and nothing else touched.
What's included in your SMSF deed update service
- Review of your current SMSF trust deed.
- A written list of the gaps and outdated provisions found.
- Deed of Amendment or replacement deed prepared.
- Execution instructions drawn from your existing deed.
- Trustee resolutions and advice on member consent.
What does an out-of-date deed actually cost?
A trustee who acts beyond the powers the deed gives them is not merely non-compliant. The transaction itself may be void, and the trustee may be personally answerable for the loss that follows.
The version that does the most damage is quieter. A member dies. The surviving trustee goes to give effect to the binding nomination the family has relied on for years. The deed never contained a valid mechanism for making one. The nomination fails and the trustee’s discretion returns. That discretion now sits with a person who is very often one of the people standing to receive the money. Families who would never have argued about anything else end up arguing about that. Nobody involved has the capacity for it.
How we bring the deed up to date
We read your existing deed properly, against the current law and against what your fund is actually doing. We tell you which provisions are missing, which have fallen behind and which are fine as they stand. We then prepare a Deed of Amendment that closes those gaps without disturbing the arrangements you chose on purpose.
The amendment power lives in your existing deed, so how the change must be executed is governed by the document we are amending. We set out those steps and supply the trustee resolutions that make the amendment effective from the day it is signed. You end up with a fund that can do the things you are going to ask of it.
How a deed update runs
Three steps from the deed you have to the deed your fund needs.Read the deed
We go through your existing deed and identify the powers it is missing and the provisions that have fallen behind the law.
Draft the amendment
We prepare a Deed of Amendment that closes the gaps and leaves the arrangements you chose deliberately alone.
Sign it properly
We set out the execution steps your existing deed requires and provide the trustee resolutions that make the change effective.
A deed that can do what you are about to ask of it
A deed update is the easiest thing in the world to leave until next year. It fixes nothing you can currently see, and the fund is working fine. That is exactly the shape of the problem. The deed is the one document that only ever gets tested at a moment when it is too late to change it.
We are ISO 9001 accredited. What gets checked on a deed review, and what you are told about it, is defined rather than left to chance. Two of our lawyers are full members of the Society of Trust and Estate Practitioners. That matters here, because most of what an old deed gets wrong is what happens when a member dies.
Our great lawyer guarantee
Six principles we hold to, whatever you bring us and however long it takes.
Take the time
We listen carefully to understand what you want to achieve, then step you through the advice and the documents.
Share our knowledge
We pass on as much as we can, so you can make your own informed decisions.
Stick to our knitting
We only do what we are good at, so you never pay for our learning.
Work as one team
Someone is always available to answer your question or point you the right way.
Fair pricing
A fixed or capped quote for advice and documents, so you do not carry the price risk.
It is your show
We are in it for a front row seat to witness your success, not for our egos.
Find out what your deed is stopping you doing
Send us your current deed and tell us what you want the fund to do. We will tell you whether the deed supports it, and what an amendment would involve.
More on this area of law
Read more about SMSF trust deeds and keeping your fund’s documents current.
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