Lost Super Fund Deed
If your client has lost their super fund deed (or lost an amendment to their deed) in theory you should approach the court for a direction as to the rules of the fund and even the existence of the fund. The fund is easily open to a challenge by any potential beneficiary (including potential death benefit beneficiaries).
Of course, most of your clients will not want to spend a heap of money going to court and will be willing to bear some risk as to a challenge being made to the rules of the fund.
First, they are probably best to wind the fund up and roll their benefits into a new fund that is established with a clear set of rules. Again, there may be cost and tax reasons that the clients don't want to do this.
Finally, and most cost effectively, the fund can bear some risk (because we can not guarantee that this is a valid way of doing it) and have a deed of confirmation drawn up that ratifies the establishment of the fund and adopts a new set of rules. This deed is made between the trustee and all of the members of the fund. You can order this deed using our normal SMSF Rules Update Form and just let us know that it is a lost trust deed and we also need the date of establishment of the fund. The cost is the usual $198 printed or $143 in PDF format. But please remember that we do not suggest that this is at all a valid way to adopt a set of rules for the fund.
Lost Family Trust or Unit /Trust Deed
A lost family trust deed unfortunately is not so easy to deal with. First, you are not really able to determine who all the beneficiaries and potential beneficiaries of a family trust are if there is no deed. Second, changes to a family trust can easily lead to a resettlement that is subject to stamp duty and it is also probably a CGT event.
If you have lost a family trust deed you have 4 basic options. I will put them in order for cheapest to most expensive:
- Find the deed.
This is by far the cheapest. It is free. It also comes with very few potential problems.
- Do nothing.
After all, you haven't had a deed for a while now and it hasn't been a problem. YET! Although this is also free it may become an issue if the deed is asked for by the bank, the ATO or worse still the court.
- Do a deed of confirmation and adopt a new deed.
This is a cheap option where the trust owns no assets but is almost certainly subject to stamp duty as a new trust and a transfer of the assets from the old trust to the new trust from a stamp duty and CGT point of view. If you have a million dollars worth of land in the trust this is not a cheap option.
- Go to the court to have the trust confirmed.
This is a costly exercise (say $7,000 to $25,000) but may be the client's only option.