Wills and Self-Managed Superannuation Funds (SMSFs)
IS YOUR TRUSTEE COMPANY ABLE TO CONTINUE OPERATING THE SMSF?
If your Trustee Company cannot continue to operate, the ATO could wind up the Fund and this could be disastrous for your wealth creation and distribution wishes.
So, what happens if you, as a director of the Trustee Company, become of unsound mind or die? Obviously, you do not have legal capacity to act.
To address this, specific legal clauses need to be inserted into your Enduring Power of Attorney, the Trustee Company Constitution and your Will, to ensure your Attorney and the Executor of your estate can replace you as a director and shareholder in the Trustee Company, should the need arise.
CAN YOUR SMSF ADMINISTRATOR OR FINANCIAL PLANNER ASSURE YOU THAT THIS RISK TO YOUR SMSF HAS BEEN ADDRESSED? IF NOT CALL JIM WILSON ON 07-55363055 ext 4.
DISTRIBUTIONS FROM YOUR SMSF
Distributions from your SMSF are governed by the Trustee of the Fund, NOT the executor of your estate under your Will.
The Trustee makes the distributions pursuant to valid Binding Death Benefit Nominations, (BDBNs) authorised by the Trust Deed of the Fund. For example, the BDBNs might direct the superannuation benefits go to specific parties (such as the surviving spouse or other eligible parties) or to the executor of the Will (Legal Personal Representative) for distribution in accordance with the Will.
Therefore it is possible that you could OVER GIFT to a particular person on your death. For example, if the BDBN directs that a certain amount is left specifically for an eligible party, you and your solicitor should ensure that the provisions of the Will do not lead to an over-gifting to that eligible party.
Therefore, your solicitor should not prepare your Will without considering the Binding Death Benefit Nominations in the Trust Deed of your SMSF.
HAS YOUR SOLICITOR ADDRESSED THIS ISSUE IN YOUR WILL? IF NOT CALL JIM WILSON ON 07-55363055 ext 4.