Self-Managed Superannuation Funds: Member and Trustee Requirements

Keyword: trustee limit, SMSF requirements, adding members, adding trustees, member death

 

SMSF (Other than Sole-Member Funds)

The basic conditions for a SMSF (funds other than sole-member funds) are highlighted in s 17A of the Superannuation Industry (Supervision) Act 1993 (Cth) ('SIS Act'). These conditions are:

  • it has no more than 6 members;
  • if the trustees of the fund are individuals - each individual trustee of the fund is a member of the fund;
  • if the trustee of the fund is a body corporate (corporate trustee) - each director of the body corporate is a member of the fund;
  • each member of the fund:
    • is a trustee of the fund; or
    • if the trustee of the fund is a body corporate - is a director of the body corporate;
  • no member of the fund is an employee of another member of the fund, unless the members concerned are relatives;
  • no trustee of the fund receives any remuneration from the fund or from any person for any duties or services performed by the trustee in relation to the fund;
  • if the trustee of the fund is a body corporate - no director of the body corporate receives any remuneration from the fund or from any person (including the body corporate) for any duties or services performed by the director in relation to the fund. 

 

The maximum number of allowable SMSF members increased from 4 to 6 for new and existing SMSFs and small APRA funds from 1 July 2021. 

Note The decision to add extra members to a Fund should not be taken lightly as it can add complexity to the fund's management. Given the rules (see above), adding a member also means that the Fund's trustee arrangement is altered - this can be of special concern in the event of a dispute. Professional advice should be obtained. 

In some instances, certain States (and trust deeds) may limit the number of individual trustees that a trust can have. For example, in NSW and Vic the number of trustees in a trust is limited to 4. This means that it could prevent all members of a Fund that has 5-6 members from being individual trustees and so, a corporate trustee structure may need to be considered. 

 

Sole-Member Funds

Section 17A(2) of the SIS Act provides the requirements of a sole-member fund. The requirements are that:

  • if the trustee of the fund is a body corporate:
    • the member is the sole director of the body corporate, or
    • the member is one of only 2 directors of the body corporate and the member and the other director are relatives; or
    • the member is one of only 2 directors of the body corporate and the member is not an employee of the other director;
  • if the trustees of the fund are individuals:
    • if the member is one of only 2 trustees, of whom one is the member and the other is a relative of the member; or
    • the member is one of only 2 trustees, and the member is not an employee of the other trustee;
  • no trustee of the fund receives any remuneration from the fund or from any person for any duties or services performed by the trustee in relation to the fund;
  • if the trustee of the fund is a body corporate - no director of the body corporate receives any remuneration from the fund or from any person (including the body corporate) for any duties or services performed by the director in relation to the fund.

In the situation of a 2-member fund where one of the members pass away, the Fund does not immediately convert into a sole member fund. Rather, s 17A(4) of the SIS Act allows 6 months for the Fund to bring itself within the terms of s 17A(2). 

 

Further Information

Establishing a Self-Managed Superannuation Fund (SMSF)

 

 

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