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Lost trust deeds may not require any action

SMSF trustees do not necessarily have to take any action in the event they lose the fund’s trust deed, according to a specialist superannuation lawyer.

Townsends Business and Corporate Lawyers principal Peter Townsend said: “Doing nothing should not be ruled out immediately as a choice [if a trust deed has been lost].”

Townsend emphasised that course of action was not meant to belittle the need to have a physical trust deed, which was in most cases critical when SMSFs wanted to deal with third parties, such as the ATO, the banks, fund managers and stockbrokers.

“But maybe you don’t need to engage with third parties,” he said.

“Maybe they’ve already seen and have a copy of the deed. Banks normally use photocopied documents and if the client sent them the deed several years back, and nothing’s changed, maybe they don’t need to see anything for the time being.

“Same with the ATO. Why would they want to see the deed or have you previously provided the deed to them and maybe you don’t need to produce it?”

He pointed out the life stage of the trust had to be taken into consideration as well when assessing what to do about a lost deed.

“Are we toward the end of the useful life of the trust? Is this a self-managed super fund with one member in his mid-seventies? Maybe he’s in pension phase, is fairly quiet about what he’s doing.”

“So maybe the fund deed’s not going to last for very much longer and you don’t need to do anything about it.

“So that’s the first question you’d ask yourself – can we get away with doing nothing?”

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