SMSF Trustees

Who are they, what do they do, how are they chosen?

What is an SMSF trustee?

A self-managed super fund is a type of corporate entity known as a trust, and therefore it has trustees and beneficiaries (members). The trustees manage the strategy and operation of the self-managed super fund on behalf of the member beneficiaries. A trustee of an SMSF can be an individual or a separate trustee company.

The SMSF trust deed – the legal document that establishes the trust and contains its rules– will usually set out the rules for choosing trustees. The ATO also has rules on who can be trustees, how they’re appointed, and how many are required.

Trustee structure – Individual or Corporate?

When setting up an SMSF, one of the first things to consider is the type of trustee structure.

Individual trustees: up to four individuals depending on the type of SMSF
Corporate trustee: a company that acts as trustee through the decisions of its directors

The structures differ in relation to their set-up costs, trustee numbers, registered ownership of assets, liability protection, penalties, and succession planning.

Note that under the corporate trustee structure, the trustee is a company, which is in turn managed by directors.

Differences between trustee structures

	Individual Trustees		Corporate Trustee
	Single-member fund	Multi-member fund	Single-member fund	Multi-member fund
Number of members	One	Two to six	One	Two to six
Number of trustees/directors	Two	Two to six	One or two	One to six
Membership	One trustee must be a fund member	Each trustee must be a fund member and vice versa	One director must be a fund member	Each director must be a fund member and vice versa
ASIC fees	Nil		One-off registration fee plus an annual review fee
Asset ownership	Title of ownership is in the name of the trustees as trustees for the fund. If there is a change of individual trustees, then the trustee names on the titles must be changed too. This can incur an expense.		Since title of ownership is in the name of the trustees as trustees for the fund, then it is the company’s name on the title. So, a simple change of directors, won’t change the name of the company or the name on the title.
Asset separation	The assets of the fund must not be combined with the personal assets of the trustees or members.		The assets of the fund must not be combined with the personal assets of the directors or members.
Liability	Individual trustees may be liable for damages.		Companies offer limited liability, which means directors may be protected if the corporate trustee is sued for damages.
Penalties	Penalties for breaches of the super laws can be applied to each trustee individually.		Penalties for breaches of the super laws are applied once only and to the company as a whole.
Succession	Without a suitable succession plan, changes in trustees can cause the SMSF to become inoperable.		A corporate trustee can continue to operate if a member or director dies.

Can an SMSF have one member and one trustee?

A single-member SMSF can have one member but must have either:

Two individual trustees (one of whom is also a member) or

A corporate trustee.

However, the corporate trustee can have just one director, as long as they are also the sole member of the SMSF.

Can an SMSF trustee be paid?

No. Despite the time, expertise, and responsibility involved in being an SMSF trustee (or director) they cannot be paid. All returns must go back to the members of the fund.

What is an SMSF trust deed?

The trust deed is the legal document that establishes the SMSF as a trust. It sets out the trustees and beneficiaries (members) as well as any rules of the SMSF such as payment of benefits, how trustees are appointed or removed, who can be members, and what to do if the SMSF is wound up.

Trust deed tips

Get professional advice.

Since the trust deed is a legal document, it is important that it is drafted correctly. A legal professional or accountant will be able to draft up a deed that covers the basic requirements plus any special conditions you want to be included.

Schedule updates.

Given that taxation and superannuation rules change quite frequently, it is important for the deed to be professionally reviewed and updated. The timeframe for this can be included in the rules of the deed.

Include an initial asset.

Right from the start, there must be value attached to the SMSF. It can be a token amount and a traditional way of doing this was to attach a $10 note to the trust deed, to create an initial asset of the SMSF.

Signatures and dates.

Make sure all trustees have signed and dated the deed, and that they’ve also signed the Trustee Declaration confirming that they understand their responsibilities and are willing to carry them out.

Execute the deed.

For the trust deed to come into effect it must be executed according to the laws of the relevant state. This usually involves signing a specifically worded block on the deed, dating it, and delivering it to the parties involved.

Trustees must act in the best interests of the members

The most important rule for any trustee is that they consistently make decisions in the best interests of the members. And since the fund is set up to provide a healthy income in retirement, this includes doing its best to maximise the returns on the fund’s investments.