An SMSF must at all times have the legal ownership of the assets it owns. Trustees need to manage the Fund’s investments separately from the personal investments of the Members.
Fund assets should always be held in the name of either:
- the Individual Trustees ‘As Trustees For’ the SMSF, or
- the Corporate Trustee ‘As Trustee For’ the SMSF.
There may be circumstances that prevent you from holding assets using the SMSF’s name. If the investment assets cannot be held in the SMSF’s name, the SMSF must demonstrate that it has the enforceable legal rights of the asset and the ownership by the SMSF should be clearly established. This can be achieved by creating either a Declaration of Trust or a Statutory Declaration to affirm the SMSF has the ultimate ownership of the asset.
When an SMSF owns an asset, it usually owns both the ‘legal’ and ‘beneficial’ interest. A trust is created when the ‘legal’ and ‘beneficial’ ownership is separated. A Declaration of Trust clearly establishes the relationship between legal owners and beneficial (real) owners of the asset. Legal owners act merely as Trustees for and on behalf of the beneficial (real) owners. A Declaration of Trust is suitable when SMSF Trustee has not yet purchased the asset, but intends that they will purchase the asset and will at all times hold the asset on trust for the Beneficiary (SMSF). This agreement declares that the true (beneficial) owner is the SMSF.
When purchasing overseas properties, some countries don’t know what an SMSF is. As a result, the property can’t be registered under the name of the SMSF. A Declaration of Trust can be established to confirm the title holder of property that is being held for the benefit of the SMSF. The property is placed in a trust, with a trustee overseeing the asset. We charge $950 to set up a Declaration of Trust. Please see our fee schedule for more details. To see our sample Declaration of Trust Deed, please download from here:
A Statutory Declaration is a written statement that a person signs and declares to be true and correct before an authorised witness. By signing it, you agree that the information in it is true, and you can be charged with perjury if the information is false.
For example, if the asset, such as an overseas bank account, is set up under the name of the Trustee and not the Fund, Trustees can sign a Statutory Declaration to affirm the SMSF has the ultimate ownership of the bank account. You can download some sample Statutory Declarations here :
Here is an ATO video to help you understand more on the SMSF ownership:
Trustees should always ensure the SMSF investments adhere to the Investment strategy of the Fund. The Investment Strategy can be amended by the Trustee to reflect their choice of investments. For more information on the SMSF Investment Strategy, please see our website page here.