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SMSF Succession Planning

Click here to register for DBA Network Pty Ltd’s 2-hour online webinar to learn more about SMSF Succession Planning (a fee is payable to DBA Network for this webinar).
Click here to register for DBA Network Pty Ltd’s 90 minute online webinar ‘Best Practice for advisers with BDBNs’ (a fee is payable to DBA Network for this webinar).

SMSF succession services and documents

DBA Lawyers offers a range of SMSF succession services and documents which are tailored to deliver sound succession outcomes that are strategically linked to a member’s personal estate plans.

Our services and documents are the best available as they include many value-added strategies that other providers do not offer, and our expert SMSF lawyers review all documents providing a secure foundation for your SMSF succession plans.

Services Description
SMSF Succession Diagnostic Service

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A personalised consulting service to assist clients with their SMSF succession plans, helping them achieve their objectives with as much certainty as possible and minimising future risk of legal challenge.

The scope our engagement generally involves reviewing relevant background facts and source documents; undertaking investigation and research to confirm issues requiring further consideration; and providing initial oral feedback in a video conference (eg, Zoom) or phone call for up to 1.5 hours.

Binding death benefit nominations (BDBNs)

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Though many of our clients rely on the value-added free template BDBN form provided with the product disclosure statement in our SMSF documentation, some clients wish to have a tailored nomination in place prepared by an SMSF lawyer.

Our tailored BDBN service is recommended where clients have more complicated wishes for their death benefits, (eg, cashing particular interests or allocating assets to dependants or their estate, or implementing child pension nominations).

Timely payment of benefits

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An advice service regarding how to achieve a legally effective and timely withdrawal of super benefits (eg, where a member is over age 60) prior to a person’s death.

If appropriate, our lawyers can also assist in preparing documents to record asset transfers from an SMSF to a fund member who has satisfied a relevant condition of release on an ‘as soon as practicable’ basis subject to legal constraints.

Documents Description
SMSF Deed

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DBA Lawyer’s SMSF deed can smooth SMSF succession planning by providing flexibility for:

– a person’s executor to become a trustee/director in place of a deceased member;
– a person’s attorney acting under an Enduring Power of Attorney to become a trustee/director in place of a member when they have lost legal capacity;
– a member’s interests to be managed by their executor/attorney following their death/incapacity. Typically, SMSF members wield ultimate control and can hire and fire a trustee but our governing rules provide protection for members if they become incapable or die.
– Many other value-added strategies that other SMSF deeds do not provide.

Company Constitution

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DBA Lawyers’ company constitution can succession planning by providing flexibility for:

– an executor or attorney acting under an Enduring Power of Attorney to become a director and still remain compliant with the trustee/member rules;
– a mechanism whereby voting can be managed by giving one or more shareholders greater voter power and/or veto rights, rather than being based on the number of directors or shares held;
– successor directors and value-added template with every company for no extra charge providing that a director can appoint one or more successor directors to step in as directors on the incapacity or death of the director. Few other companies allow for successor directors or provide the relevant documents; and
– Many other value-added strategies that other constitutions do not provide.

Death Benefit Payment Deed

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A death benefit payment deed catering for a common succession planning objective for two member funds in a manner that is optimised for the transfer balance cap rules.

The documents ensure that upon death, any account-based pensions being received by a member automatically revert to their spouse up to the spouse’s transfer balance account. The member can then select whether they want any remaining balance to be paid as a lump sum either to a nominated beneficiary or to their estate (LPR).

BDBN disclaimer documentation

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Documentation to disclaim any present or future entitlement to a death benefit arising under a BDBN.
Hardwired SMSF deed and tailored succession documents

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Tailored SMSF and pension documents, including special deeds of variation to provide for restricted non-commutable pensions and other relevant succession documents, to achieve personalised solutions for your clients
Conditional member admission

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Documentation for new member(s) to be admitted to an SMSF subject to agreed conditions for cessation of membership.
Exclude potential beneficiaries Documentation to exclude potential beneficiaries can minimise legal risk where the relationship with potential dependants has soured or ceased, eg, falling out with a family member. Since an SMSF is a trust, the SMSF trustee must generally act appropriately in relation to all potential beneficiaries who may claim a benefit, especially after a member’s death. A potential beneficiary may also seek documentation to undermine the SMSF trustee’s decision to pay a death benefit. We can prepare documents minimising such risks.
Successor director appointment

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Documentation for a nominated person to be automatically appointed as a director of a company upon the loss of capacity or death of the appointing director.

Please note that the DBA Lawyers’ company constitution includes a standard form for successor director appointments.

Why do you need an SMSF succession plan?

Though often overlooked, succession planning is a critically important aspect of successfully operating an SMSF. Every SMSF member should develop, implement and regularly review a personal succession plan to ensure there is a smooth process in place for succession to control of the fund and other succession arrangements appropriate for their individual circumstances.

SMSF succession planning broadly aims to ensure that:

  • the right people receive the intended proportion of SMSF money and assets; and
  • the right people gain control of the SMSF to make certain that superannuation benefits are paid as intended; and
  • outcomes are provided in a timely fashion, with minimal uncertainty and in as tax efficient manner as possible.

Right Assets - RIght Person - Right Time

Many people have outdated, inappropriate or no SMSF succession plan that may result in considerable uncertainty surrounding the future control of the fund and the ultimate payment of their super benefits.

Effective succession planning considerations

There is no easy ‘one size fits all solution’ for SMSF succession. However, there are some general considerations that should be taken into account. For more information, click here.

For more information and related articles

For more information on succession planning, click on the articles listed below:

For more information on some of the strategic reasons why our SMSF documents are so highly regarded, click on the article listed below:

For more information on the advantages of a DBA Lawyers company and our company documents, click on the articles listed below:

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