You can choose one of the following structures for your fund: up to four individual trustees, a corporate trustee
- August 17, 2015
New funds usually appoint trustees under the fund’s trust deed.
All trustees and directors must:
- consent in writing to their appointment
- sign a stating that they understand their duties and responsibilities (this must be done within 21 days of becoming a trustee or director)
- keep these documents on file.
Penalties may be imposed if these things aren’t done. All trustees are bound by the trust deed and are equally responsible if its rules aren’t followed.
On this page:
- Ensure members are eligible to be trustees
- What it means to be a trustee
- Legal personal representatives
- Removing yourself as a trustee
- Becoming a trustee again
Ensure members are eligible to be trustees
All members of the fund must be individual trustees or directors of the corporate trustee, so make sure they’re eligible.
Anyone 18 years or over can be a trustee of a super fund as long as they are not under a legal disability (such as mental incapacity) or a disqualified person.
A person is disqualified if they:
- have been convicted of an offence involving dishonesty
- have been subject to a civil penalty order under the super laws
- are insolvent under administration (including being an undischarged bankrupt)
- have been disqualified by a court or regulator (for example, by us or APRA).
A company can’t be a trustee if:
- a director or other responsible officer of the company (such as a secretary or executive officer) is a disqualified person
- a receiver, official manager or provisional liquidator has been appointed to the company
- action has started to wind up the company.
Members under 18 can’t be trustees but a parent, guardian or legal personal representative can be a trustee on their behalf.
What it means to be a trustee
Whether you’re a trustee or director of a corporate trustee, you’re responsible for running the fund and making decisions that affect the retirement interests of each fund member, including yourself. As a trustee you must:
- act honestly in all matters concerning the fund
- act in the best interests of all fund members when you make decisions
- manage the fund separately from your own affairs
- know, understand and meet your responsibilities and obligations
- ensure that the SMSF complies with the laws that apply to it.
All trustees and directors are equally responsible for managing the fund and making decisions – you’re responsible for decisions made by other trustees even if you’re not actively involved in making the decision.
You can appoint other people to help you or provide services to your fund (for example, an accountant, administrator, tax agent or financial planner). However, the ultimate responsibility and accountability for the SMSF’s actions lie with you, as trustee.
As an individual trustee or director of a corporate trustee, you may be personally liable to pay an administrative penalty if the laws relating to SMSFs are not followed.
Other members of the fund can take action against you if you don’t follow the terms of the trust deed. Any fund member who suffers loss or damage because of a breach of any trustee duties may sue any person involved in the breach.
Legal personal representatives
A legal personal representative can be:
- the executor of the will or the administrator of the estate of a deceased person
- the trustee of the estate of a person under a legal disability or a minor
- a person who holds enduring power of attorney to act on behalf of another person (see also SMSF ruling 2010/2External Link).
A legal personal representative can act as a trustee or director of a corporate trustee, on behalf of:
- a deceased member, until the death benefit becomes payable
- a member under a legal disability
- a minor (a parent or guardian can also act as a trustee on behalf of a minor).
A legal personal representative can’t act as a trustee on behalf of a disqualified person, such as an undischarged bankrupt.
A legal personal representative does not include a registered tax agent or an accountant unless they meet the definition above.
If you become a disqualified person you must immediately:
- notify us of your disqualification (unless you have been disqualified by us)
- cease being a trustee.
If you are a director of a corporate trustee, you may also have obligations to inform ASIC.
Penalties apply if you act as a trustee while disqualified. Other trustees have a responsibility to prevent you acting as a trustee if they know you’re disqualified.
If you resign as a trustee your SMSF effectively has six months to restructure itself. Generally this will mean rolling your super interest out of the fund.
The other trustees or directors can:
- roll over your benefits to another complying super fund
- appoint an approved trustee who has a licence from the Australian Prudential Regulation Authority (that is, become a small APRA fund)
- wind up the fund by rolling all members’ benefits out of the fund.
If you are the only member of the fund and the sole director of the fund’s corporate trustee, contact us for advice about what you need to do.
Becoming a trustee again
If you’re disqualified because you’ve been convicted of a dishonesty offence you can apply to have the disqualification waived. You must apply in writing within 14 days of the conviction.
If you’re disqualified due to being insolvent under administration you can’t have your disqualification waived. However, once you are no longer insolvent under administration, you will no longer be disqualified and can become a trustee again.
Check the residency of your fund
*reprint from the Australian Taxation Office