Anthony Cullen, senior SMSF educator for Accurium, said the first step in dealing with an estate plan is to “actually have a plan”.
“I’m not talking about having death benefit nominations or reversionary pensions or even having a will. I’m talking about the plan itself,” he said.
“You need to be asking questions like what’s going to happen when I die? Who’s going to control things? What assets do I hold? Where do I hold them? Do I hold them individually? Are they in a company? Do I trust my super firm? Who do I want to receive those assets?”
Cullen said an SMSF is a type of trust in which the trustee controls the fund and when it comes to having an estate plan, it is important to consider who may control the fund when the member passes.
“All that planning may not amount to much if the right people don’t have the control and so as a type of trust, from a superannuation point of view, we need to think about the trust deed and more specifically what does the deed say in relation to appointing and removing trustees?” he said.
“Most deeds will say you’re automatically removed as a trustee when you die or lose capacity. Some deeds will say that you are no longer a member once you pass, but whatever the case you need to include it in the deed.”
Cullen added some deeds state that the legal personal representative, that is the executor of the estate, may become a trustee.
“I’ve even seen deeds where they talk about the fact that if there’s any discretion on the trustee’s behalf to deal with the death benefit, or there’s a nomination that they believe is invalid, then the trustees has to consult the executive before making the decision,” he said.
“So who has control is a very important step in the whole process, but we often get caught up in the death benefit nomination instead of taking that first step. Even if you have a death benefit nomination, it doesn’t mean that it’s going to get followed [if the right person is not in control].”
He added that in a corporate trustee structure, it is also important to consider the company constitution, as there will generally be clauses included that deal with removing directors.
“Alternative directors don’t account for much when it comes to your death, but a successor director may be important,” he said.
“Not all constitutions have the provisions for successor directors and once again, it’s important to know who is appointing the directors and that often lies with the shareholders, so if your client is the shareholder and they die, then who gets to vote as the shareholder?”
