The trust deed is one of the most important documents for a self-managed super fund (SMSF). It sets out the rules for how the fund operates, including investment decisions, member benefits, and compliance with superannuation laws. Losing this document can be a serious issue, but there are steps trustees can take to resolve the situation.
Check all records and backups
Before assuming the deed is lost, conduct a thorough search:
- Review personal and business files – The deed may be stored with other legal or financial documents.
- Check digital records – If the deed was scanned or emailed, it may be saved in cloud storage or email archives.
- Contact your accountant, financial adviser, or lawyer – If they were involved in setting up or managing the SMSF, they may have a copy.
Request a copy from the original provider
If you can’t locate the trust deed, reach out to the professional who prepared it. This could be:
- The solicitor or legal firm that drafted the deed.
- The accountant or financial adviser who assisted in setting up the SMSF.
- The corporate trustee service provider if the SMSF has a corporate trustee structure.
They may have retained a copy or records of the original trust deed.
Determine if the deed needs to be replaced
If no copy of the trust deed can be found, the SMSF will need to execute a replacement deed. This process involves:
- Seeking legal advice – A legal professional can draft a new deed that aligns with current superannuation laws.
- Ensuring all members and trustees sign the new deed – A replacement deed must be properly executed by all trustees to be legally valid.
- Updating the Australian Taxation Office (ATO) and other relevant parties – While the ATO does not require SMSFs to submit trust deeds, it’s important to notify relevant financial institutions and auditors.
Implications of losing the trust deed
Without a trust deed, the SMSF may face compliance issues, particularly during an audit. The deed outlines key fund rules, including member benefits, contribution limits, and trustee responsibilities. If an auditor requests the deed and it cannot be provided, the fund may be deemed non-compliant, which could lead to penalties.
Preventing future issues
To avoid this situation in the future:
- Store multiple copies – Keep both physical and digital copies in secure locations.
- Use a professional document storage service – Some legal and accounting firms offer secure document storage.
- Regularly review and update the deed – If changes to superannuation laws or fund operations require updates, ensure all versions are retained.
Losing an SMSF trust deed is a serious matter, but by taking prompt action and seeking professional advice, trustees can ensure the fund remains compliant and operational.
If you have any queries about dealing with a lost SMSF trust deed, please contact us.