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  1. Tink

    Tink Well-Known Member

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    I've just received an email regarding updating our SMSF Trust Deed from the Financial Advisor

    Is the normal process to speak to a Solicitor? You would need to pay this cost from the SMSF also I assume

    I guess they would need to be well versed in SMSF deeds if so

    "It is the responsibility of the trustees to ensure that the deed for the super fund is maintained and up to date and as there have been changes in the law in recent times it would be wise to make sure that the deed has been reviewed and updated.

    If you wish to seek further advice you will need to talk to a solicitor that specialises in deed construction as we nor XYZ (SMSF provider) can give advice in what to change or what to update within the deed.

    You will see attached to the letter is an update authority to be complete"

     
  2. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

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    Yes, amending deeds is legal work. Is there a reason why they think an amendment is needed?
     
  3. Paul@PAS

    Paul@PAS Tax, Accounting + SMSF + All things Property Tax Business Plus Member

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    Some trust deeds require constant amending. Others dont. How thick is it? The thick ones need constant updates....they repeat laws that change.
     
  4. Paul@PAS

    Paul@PAS Tax, Accounting + SMSF + All things Property Tax Business Plus Member

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    Amending is legal services but the advice about why ...is licensed financial advice. Hmmmm
     
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  5. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

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    No both would be legal advice. But the financial planner may have mention something not amounting to legal advice - a hint.
     
  6. Redwood

    Redwood Well-Known Member

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    Hi Tink

    Generally, SMSF Trust deeds should be amended by "deed of variation" on a regular basis. It will include dates on all previous variations, its generally one page that you sign with the deed attached. Generally an accountant or planner will use a legal framework/ provider to provide the deed to you with the lawyer branding. You may want to ask which lawyer is providing the deed and if there is legal liability protection. As an auditor I request all funds with a deed older than 2010 update. There are a 100 reasons why. Further, if you are purchasing property by way of limited recourse borrowing arrangement - any deed pre 2009 will not have the necessary powers to borrow. Recent pension changes also enhance the process.

    In summary, just check the fee they are charging, should be no more than $250. Try to stay away from Cleardocs, but there are a heap of online providers that you can use, just make sure legal liability protection is included. If you are struggling, contact Jeremy Gordon from Direct Docs.

    Here is an article to read and glad you're asking the question
    Why you should update your SMSF deed sooner rather than later - SMSFAdviser Magazine

    Cheers Ivan
     
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  7. Ross Forrester

    Ross Forrester Well-Known Member

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    Only the lawyer can do doc prep for deed amendment.

    Lots of people can tell you why the deed is inadequate and that you should think about changing it.

    1. the smsf auditor can indicate that the deed has been breached and s/he will make a contravention report if the breach is not fixed or the deed amended,
    2. the tax guy can say that the deed does not refer to current legislation and a tax outcome will not arise if the deed is not fixed
    3. The financial product advisor would somehow be find the deed connected with the financial product they are recommending - just can't think of one right now
    4. The lawyer if you meet one yearly to go over this type of stuff.

    A lot of our smsf deeds are pretty vanilla - we use a big law firm that mass produces them. We then have very very high value smsf funds and they meet the smsf lawyer yearly with me in toe.

    Technically the other guys are giving legal information - not legal advice.
     
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  8. Ed Barton

    Ed Barton Well-Known Member

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    There's not much you technically need a lawyer to do. But not using one may be unwise.
     
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  9. Redwing

    Redwing Well-Known Member

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    Ours provided a couple of options to review
    1. Smart Corp $240 + GST
    2. All Law Docs $340 + GST
    3. Deed Provider of your choice
    4. Do not wish to proceed (Believe current Deed is adequate)
    They advised changes of late included
    • Introduction of transfer balance cap
    • Changes to contribution eligibility based on super balance
    • Allowing catch up concessional contributions
    • Introduction of total super balance
    • Changes to tax treatment of TRIS pensions
    • CGT relief on assets for SMSF's affected by the new legislation
     
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  10. Ross Forrester

    Ross Forrester Well-Known Member

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    I know Pino Monaco at All Law Docs and he is a decent operator. He is a partner at Godfrey virtue lawyers. His online service is a bit more expensive than the majors but you can talk to him and he will answer the phone.
     
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  11. Paul@PAS

    Paul@PAS Tax, Accounting + SMSF + All things Property Tax Business Plus Member

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    There was a solicitor who sold cheap online legal precedent docs that created that line. A very misleading comment. One of the Law Societies acted to have the practice cease. How do I know - I made the compliant and it was upheld. There is no such thing as legal liability protection on documents or legal services given to produce documents. Not for the buyer.

    The lawyer has PI cover. Required of any practising solicitor / legal service.
    The client may suffer loss / harm resulting from legal services rendered
    The client can seek remedy for their loss against the lawyer...It may require legal proceedings at cost to the client. The client may include their costs in a claim. Or the practitioner may resolve it through another means. ie replacement or paying a cost.

    The lawyer is insured if the insurer accepts and pays a claim made by their client, the lawyer. They may also defend it and take on the client !! PI insurers often defend claims.

    The client has no rights otherwise and is not insured or a beneficiary under any PI policy. The insurer may indemnify the practitioner but a successful PI claim must be made to the practitioner. A client cannot make a PI claim.

    At best a client may also have consumer law remedies which arent legal liability protection either. It is a right incapable of exclusion by law.

    PI insurers also have general rules which result in disallowed claims if a practitioner offers insured outcomes or disclose the PI existence in some cases.

    Lawyers should know better.
     
  12. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

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    lawyers are covered by PI insurance and liability is also limited by a scheme. But these online providers are not actually law firms. These are companies which have contracted with a law firm to supply them with a document. These companies then contract with the end client to provide a document without legal advice. So there is no contractual relationship between the lawyer and the client.
     
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  13. Paul@PAS

    Paul@PAS Tax, Accounting + SMSF + All things Property Tax Business Plus Member

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    Yes I forgot to mention that legal liability is limited (often). Same with some accountants too. They have to disclose it on letterheads etc and nobody understands it until it counts. And even then they can appeal costs and have the reassessed. Cost doesnt mean actual cost. Grrr

    Its like a client who won full costs v's ATO. Actual legal costs $45K. How much did she get ? $25K...You can never beat them. The advice was that was a good outcome.