What is a trustee?
Trustees are the people who are legally in charge of the fund. Some people are specifically not allowed to be a trustee.
This includes people who:
- have ever been convicted of an offence involving dishonesty
- have ever been subject to a civil penalty order imposed by superannuation law
- are considered insolvent under administration
- are an undischarged bankrupt
- have been disqualified by a regulator e.g. ATO or APRA
Who is eligible to be a trustee?
There are certain circumstances where you can’t be a trustee but someone else is allowed to do it for you. Under these circumstances you can still have an SMSF. This is possible, if:
- you are under 18 and your parents are the trustee for you
- you are disabled and have someone who has been legally appointed to manage your affairs
- you have given someone an “enduring power of attorney” (a legal document that allows them to act on your behalf in a number of ways, including being the trustee of your SMSF)
If you are not sure if you are eligible to be an SMSF trustee, contact Heffron and we can talk you through the eligibility requirements.
Can someone who is physically or mentally disabled have an SMSF?
Yes, but if they are mentally disabled they will generally be unable to be a trustee of their fund or a director of a corporate trustee.
However, superannuation law specifically caters for these people by allowing the person’s guardian or anyone who holds an “enduring power of attorney” to be the trustee of their fund or director of the trustee company, in their place. This is quite common. As people with SMSFs get older, they will nominate someone such as an adult child to be a trustee in their place.
Can someone living overseas belong to an Australian SMSF?
Yes. But the fund must still meet three residency rules. Unless you are confident you will be able to meet them you should be careful about setting up your SMSF if any of the members live overseas give Heffron a call to talk it through if you have any doubts.
The rules are:
- at least some of the assets must be in Australia when the fund is established (e.g. by having an Australian bank account).
- the fund is controlled from Australia (generally this means that at least half of the trustees or directors need to be Australian residents).
- fund members who are having contributions made or transferring new money from other funds into the SMSF are called “active members”, whereas someone who is already a member and not making contributions any more isn’t an active member. If you add up all the money belonging to the “active members”, at least half of it must belong to Australian residents.
