About our deed
DBA Lawyers is Australia’s leading SMSF law firm. We have been refining our SMSF deed for well over 30 years, making it the best SMSF deed available. Our SMSF deed contains numerous ‘value-added’ advantages that are not available in most other deeds. Additionally, our SMSF deed also comes with a PDS, BDBN template, memo and much more.
For more information on some of the strategic reasons why our SMSF documents are so highly regarded, click on the below article.
Does your SMSF deed need updating?
An up-to-date deed is necessary to implement the latest strategies and to ensure compliance with the latest legal and practical changes. It is also best practice for advisers to use up-to-date deeds for ease of administration for their SMSF clients and to maximise strategic flexibility and minimise risk.
Given there are regular developments and changes (including legislative, regulatory, practical and strategic) occurring on an ongoing basis we generally recommend that an SMSF deed be updated on at least a 5-yearly cycle.
We acknowledge that if deeds have been updated recently, some may prefer not to upgrade them again immediately and may do so on a case-by-case basis. We strongly recommend, however, that such deeds be reviewed in detail before any major decision is implemented, eg, commencing a pension, making substantial contributions, undertaking a limited recourse borrowing arrangement (LRBA) or undertaking estate planning.
We keep our clients who use our deed notified of changes impacting their deeds on at least an annual basis via our Annual Update Service. This service provides a convenient and sound way of ensuring that SMSFs’ governing rules are kept up to date to give SMSFs maximum strategic flexibility, compliance and peace of mind. click here for more information.
We are also pleased to review and provide comment on whether an SMSF deed requires any update.
Where there are major super reforms as set out below, SMSF deeds may require an update shortly afterwards to ensure ongoing compliance and flexibility to implement new measures. Refer to the below table and our COVID-19 web page in this regard, click here.
|1 July 2007||Major super reforms||These reforms were substantial and included, among other things:
|1 July 2017||Major super reforms||These reforms were substantial and included, among other things:
- deed of variation (incorporating a pro forma application for membership and notification to contributing employer forms)
- draft trustee and any other relevant party resolutions
- comprehensive product disclosure statement, SMSF memo and materials for each member (incorporating pro-forma member contribution notice and binding death benefit nomination (‘BDBN’) forms)
- detailed instructions, including a completion checklist
FAQs about the DBA Lawyers SMSF Deed
Does DBA’s deed allow the trustee to borrow under a limited recourse borrowing arrangement?
Yes. DBA’s deed allows the trustee of the fund to borrow in accordance with section 67A of the Superannuation Industry (Supervision) Act 1993 (Cth). Many deeds, issued prior to mid-2010, have insufficient powers and would not be accepted by lenders who typically review all SMSF deeds before lending. All SMSF trustees proposing to borrow should have their deed thoroughly reviewed and upgraded as lenders typically closely scrutinise all prior deeds. We offer the SMSF Deed History Review service (click here) in addition to our SMSF deed update service (click here).
How does succession to the ‘trustee’ role operate under DBA’s deed?
DBA’s deed has been prepared with a view to smooth SMSF succession planning in providing flexibility for:
- a person’s executor can easily become a director in place of a deceased member under our constitution;
- a person’s attorney acting under an Enduring Power of Attorney can easily become a director in place of a member when he or she loses legal capacity;
- a member’s interests in the SMSF can be managed by their executor/attorney following their death/incapacity. Typically, the SMSF members maintain control and can hire and fire a trustee (having regard to their overall fund balance as a proportion of the total fund balance). The DBA SMSF deed provides protection for members if they become incapable or die by allowing their legal personal representative to ‘stand in their shoes’.
- a member can nominate a ‘successor director’ during their lifetime to step into their role as director upon their incapacity or death, which helps to minimise the uncertainty of who will take control of their fund after the loss of their capacity or death. Note, the nomination of a ‘successor director’ is provided for in our company constitution (DBA’s company constitution comes with a successor director nomination form);
- Many other valued-added strategies that other SMSF deeds do not provide.
Does DBA’s deed allow for the new types of pensions?
Yes. The deed allows account-based pensions and transition to retirement income streams (‘TRIS’) and any other pension to be paid. Our deed has special drafting to preserve any prior pensions such as lifetime pensions, fixed term pensions, flexi-pensions, capped defined benefit income streams and various other ‘legacy’ style pensions that have been allowed under prior rules.
Does DBA’s deed allow for a binding death benefit nomination (‘BDBN’)?
Yes. This is a key strength of the DBA SMSF Deed as many other SMSF deeds do not facilitate the making of a valid and effective BDBN. For support on this point, click here. The DBA SMSF deed comes with a useful BDBN template with relevant information for members to review. DBA deeds post-June 1999 enable members to make BDBNs. For more information on BDBNs click here.
Does DBA’s deed come with a product disclosure statement (‘PDS’)?
Yes. All DBA deeds (both new and varied) come with a personalised PDS for each Member at no extra cost. Please refer to the PDS information on our website for more information. We are aware of numerous SMSF deed suppliers that rely on an exemption in the Corporations Act 2001 (Cth) to avoid supplying a PDS or do not provide a separate PDS to the deed. However, this exemption is difficult to satisfy and raises significant compliance risks.
Further, the PDS assists advisers in informing their clients about the features of an SMSF and is an invaluable educational tool and therefore minimises the risk of adviser liability.