Recent changes to the definition of an SMSF to allow a public trustee to step in and act for deceased or incapacitated members may make that option more appealing when clients request a practitioner act as their attorney and executor, an SMSF legal specialist has noted.
DBA Lawyers special counsel Bryce Figot said the passing of the Treasury Laws Amendment (Delivering an Efficient and Trusted Tax System) Act 2026 in late June introduced changes to section 17A of the Superannuation Industry (Supervision) Act that define the continuation of an SMSF on the death of a member.
“The changes states that a super fund does not fail to be an SMSF by reason only that a member has died; the legal personal representative of the member is the public trustee of a state or territory; an individual is in place of the member, a trustee of the fund, or a director of the body corporate, during the period between when they have died and when benefits are payable; the individual is approved in writing by the public trustee to be the trustee or director; and the individual is appropriately qualified, and holds all necessary licences, to perform their duties or services as trustee or director,” Figot said during a recent webinar.
He pointed out the change follows the case of Re Gainer [2024] NSWSC 1138 in which the NSW Trustee and Guardian was appointed as sole executor and trustee to an SMSF, but being unable to act in that capacity under law, appointed a registered liquidator to administer the fund and be paid and indemnified for their work.
“This change has gotten very little airplay because there have been so many other changes,” he added.
“It is quite an interesting one and we are going to have to wait and see exactly how that shakes out as I believe it’s going to refer to people like registered liquidators, but also to people like accountants who specialise in SMSFs.”
While the changes also covered the circumstances under which an SMSF could remunerate a trustee, he said SMSF practitioners should still exercise caution if requested to act as attorney and executor, particularly in cases of blended families where disputes could run for years.
“If you step in as attorney and executor, you may well be running this stuff, but you won’t be able to charge for your time,” he said.
“Remember, to be an SMSF no trustee of the fund can receive remuneration from the fund or any other person.
“However, if the public trustee is appointed, it could then appoint someone who can get paid. Which I guess begs the question: could the public trustee appoint you? There’s no guarantee, but they might.
“So if you agree to be the attorney/executor, you won’t be able to charge for your time and, moving forward, when you’re having discussions with clients in those sort of circumstances, the public trustee has just become far more appealing.”
Jason Spits
SENIOR JOURNALIST
Jason is a senior journalist with Benchmark Media and writes for the selfmanagedsuper website and magazine and smstrusteenews website. He has covered financial services since 1999 and has written about life insurance, superannuation, investment management and financial advice, in both a freelance and in-house capacity, and also did a brief stint as a media manager for an industry association. He has been the editor of trade titles Money Management and Financial Standard, and was most recently senior journalist with life insurance title Riskinfo.
Articles by Jason