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Who really owns your SMSF assets?

Who really owns your SMSF assetsThe assets in your self-managed super fund (SMSF) should be legally owned by the SMSF trustee on behalf of the SMSF. Superannuation laws and regulations (SISA) regulation 4.09A mandate that a fund’s assets must be kept separate from the personal or business assets owned by the trustees of an SMSF or the directors of a corporate trustee. Since members are also trustees or directors, their personal assets must be maintained separately from those held by the SMSF.

Clearly showing the owner in the title of the fund’s assets protects against personal or business creditors and prevents disputes over proof of ownership.  An exception to the SMSF trustee being on the title is when a fund asset is held by a bare trustee, such as property or shares under a limited recourse borrowing arrangement (LRBA) which involves using a bare trust arrangement.

Legal Ownership of SMSF Assets

The legal ownership of the SMSF assets should be in all of the individual trustee names or the  corporate trustee. The ATO like to see the title as follows:

  • Individual trustees <as trustee for the SMSF>
  • The corporate trustee <as trustee for the SMSF>
Example – Gary and Elaine Smart <as trustee for the Smart Family SFD> or
G & P Smart Pty Ltd <as trustee for the Smart Family SFD>


Sole purpose trustee company

The ATO acknowledges that an asset held by a sole purpose trustee company meets the requirement of fund assets being separate from the trustee’s personal assets. A sole purpose trustee serves exclusively as the trustee of an SMSF, and therefore, an asset in the title of the trustee is owned on behalf of the SMSF. A sole purpose trustee does not own any assets in its own right.

Example – the investment property of the SMSF is in the title of G & P Smart Pty Ltd which is a sole purpose trustee company.


What can you do when assets can’t be held in the name of your SMSF?

State and territory laws may prevent the use of the SMSF’s name in the title i.e. NSW Land Registry Services only allow the trustee to be included on the title. Evidence which documents the ownership by the SMSF is crucial such as the purchase contract and bank records in relation to acquiring property which evidences the purchase was made by the SMSF trustee on behalf of the SMSF. Individual trustees make it more difficult to show the separation of assets between the trustees personally and the SMSF which is one of the many reasons why we never recommend using individual trustees in any circumstances.

Hint- most share registries only allow up to 3 individual names to be recorded on the title of shares. As a SMSF can have up to 6 individual trustees it would be administratively easier to have a sole purpose corporate trustee.  When you do have more than 3 individual trustees document the purchase of the shares by all of the trustees in a trustee resolution.

How to fix SMSF title to property in the incorrect name

Who really owns your SMSF assetsThe ATO recommend a caveat, or instrument or declaration of trust be executed so that an SMSF  can assert its ownership.  It is important to note that a declaration of trust is only effective if executed before the asset is purchased and not after the fact.  Furthermore, double stamp duty may be triggered if a declaration of trust is signed after the purchase of property. An acknowledgement of trust may be more appropriate but recent changes to NSW and Victorian state legislation may trigger stamp duty and thus it is important to obtain advice in relation to your SMSF’s specific circumstances.

Another option is to change the fund’s trustee to a sole purpose corporate trustee which makes title very clear and easy to administer whilst also making a smooth transition when a member becomes incapacitated due to dementia, a marriage split or the death of a member. It is much easier to retire and appoint a new director vs changing the title of all of the fund’s assets.

Hint – stamp duty is generally minimal when changing the title of property in a SMSF from individual trustees to a corporate trustee.  Whilst there is a change to the legal title there is no change to the beneficial owner being the SMSF.

Limited Recourse Borrowing Arrangements (LRBA)

Limited Recourse Borrowing Arrangement (LRBA)

Under SISA, an SMSF can borrow to purchase certain assets using an LRBA. The asset is held by a bare trustee on behalf of the SMSF until the loan is repaid, at which point the SMSF can take full legal ownership.

A bare trustee holds the legal title to the property for the SMSF, doing nothing apart from holding the title. The SMSF retains all rights to income, the ability to sell the property, and borrows money with the property as security. The bare trust will not apply for a tax file number, an ABN, bank account, register for GST, or prepare financial statements.

The bare trust deed clearly identifies the SMSF as the beneficial owner and includes the right by the SMSF to have the asset transferred back to the SMSF after the loan is extinguished. The documentation is sufficient evidence of the SMSF beneficial ownership, and a title search is evidence that the legal title is held by the bare trustee.

Hint SMSF Insurance policies are considered an asset of the fund and therefore the title of the policy should be in the name of the SMSF trustee as trustee for the Fund. An insurance policy under an LRBA is an exception and should be under the title of the bare trustee but the insurer should note that the SMSF is the beneficiary of the policy.

Wrap Accounts or other Investment Platforms

An SMSF using a wrap account doesn’t directly own the assets. A custodian holds the investments legally for the investor’s benefit. The investment platform’s administrator records each investor’s entitlement to various assets, including shares, managed funds, international securities, ETFs, bonds, and term deposits.

Wrap accounts require internal audits. However, the auditor’s professional body does not accept these internal reports as sufficient evidence of SMSF assets being held separately. Additional audit checks would be too costly.

Therefore, an SMSF auditor will report a Part A breach of the financial audit due to the inability to verify ownership of underlying assets. Though the ATO is informed through the fund’s annual tax return, it is not considered serious. The auditor verifies that administrator reports show the wrap account reports are in the trustee’s name on behalf of the SMSF.

Hint– Other investment platforms will have similar asset arrangements. However, Separately Managed Accounts (SMAs) have a different structure and provide direct investor legal ownership.

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