Genders and Partners | Top 10 Estate Planning Predictions For Australia - Lawyer AdelaideGenders and Partners | Top 10 Estate Planning Predictions For Australia - Lawyer Adelaide

Introduction to Super

Most Australians have some superannuation.

There are 5 main types of super funds in Australia: retail, industry, public sector, corporate and self-managed.

Most Australians will have their super with a Retail Fund like MLC or Colonial First State) or an Industry fund (like CBUS or HostPlus).

AustralianSuper is the superannuation fund with the most members in Australia, with over 3.5 million members and over $350 billion in member assets.

Australian Retirement Trust (ART) is the second largest, with over 2.4 million members.

Aware Super is another large fund with over 1.2 million members.

UniSuper has over 650,000 members and manages approximately $149 billion in funds under management.

HESTA has over 870,000 members, and is dedicated to the health and community services sector.

The primary difference between industry and retail superannuation funds lies in their ownership and profit distribution. Industry funds are not-for-profit, returning profits to members, while retail funds are typically run by financial institutions and return profits to shareholders. This fundamental difference impacts how the funds operate and how their members benefit. Some people feel that industry funds represent better value for money to the member, because they are not having to pay a commission as profit to the shareholders.

A corporate fund will be run by a large company for the benefit of its (large) workforce.

Examples of Australian public sector superannuation funds include ADF Super and the Commonwealth Superannuation Scheme (CSS). These government funds cater to members of the Australian Defence Force and Australian Government employees.

PSSap is the Public Sector Superannuation accumulation plan and is designed exclusively for current and former Australian Public Service employees.

Self-Managed Super Funds

The final category of super funds is that of Self-Managed Super Funds (SMSF). In Australia, there are over 600,000 SMSFs at present. These funds have over a million members and manage in excess of an estimated $1 trillion (AUD$1,000,000,000,000) in assets, according to the Australian Taxation Office (ATO). SMSFs represent the largest and fastest-growing segment of the Australian superannuation industry.

SMSFs are an important part of the estate plan for many Australian families.

A self-managed super fund (SMSF) is a private super fund that you manage yourself. SMSFs are different to industry and retail super funds.

When you manage your own super, you put the money you would normally put in a retail or industry super fund into your own SMSF. You choose the investments and the insurance.

Your SMSF can have no more than six members. As a member, you are a trustee of the fund — or you can get a corporate trustee. In either case, you are responsible for the fund.

While having control over your own super can be appealing, it’s a lot of work and comes with risks.

Take professional advice

You should only set up your own super fund if you’re 100% committed and understand what’s involved. You need to do the work (annually) and take professional advice on at least the following issues

investing
accounting
auditing
tax advice
legal advice
financial advice
insurance premiums

WARNING: Be wary of anyone who offers to set up an SMSF to withdraw your super to pay off debts. It’s illegal.

To avoid penalties and the loss of SMSF tax concessions you need to make sure your lodgments are up to date (this means EVERY YEAR, without fail).

SMSF annual return

Lodging the SMSF annual return (SAR) is the most important compliance obligation you must meet. The SAR covers the income tax return, regulatory information and member contribution reporting, and also enables payment of the SMSF supervisory levy.

Over 65,000 self-managed super funds (SMSFs) still have outstanding lodgment obligations for the 2023 year, and there appears to be a similar trend in late lodgments for 2024.

The ATO is concerned about the growing number of SMSFs falling behind with their lodgment obligations and the ATO wants to remind trustees of the importance of understanding and meeting their lodgment and compliance obligations.

If you fail to lodge your SAR on time, there may be penalties applied and SMSF tax concessions can be lost. If your fund’s lodgment is overdue, its Super Fund Lookup may change to ‘regulation details removed.’ This can restrict your SMSF from receiving rollovers and employer contributions.

During 2025–26 the ATO will be undertaking targeted compliance action for SMSFs that are behind with their lodgment obligations. Unless prompt action is taken in relation to the outstanding obligations of these funds, their trustees can expect ATO compliance action to deliver sanctions which could include their disqualification from running an SMSF.

To learn more and to help you understand your lodgment obligations the ATO offers a free online education course “Running a self-managed super fund course”.

SMSF trustee declaration

The trustee declaration is a key document that you should take time to consider.

It highlights important duties and responsibilities expected of you by the ATO. Here are some of the key duties and responsibilities that trustees must understand:

It is your responsibility to make sure the fund is run for the sole purpose of providing super to its members when they retire. You must make sure that the SMSF is run appropriately and to the best of your ability. This includes:

Protecting super assets in the fund,
Making decisions in the interest of members;
Making sure all actions taken are allowed under super laws; and
Implementing and regularly reviewing the fund’s investment strategy.

There are restrictions on what investments can be made by your SMSF.

You are responsible for making sure that your fund’s investments do not breach these rules.
You must know the rules on when your SMSF can receive contributions and when it can pay benefits to members.
You are responsible for making sure all contributions and payments comply with laws and are allowed under the trust deed.

You have administrative duties to perform including:

Keeping records for required timeframes,
Appointing an SMSF auditor each year,
Lodging the SMSF annual return by the due date, and
Notifying the ATO of changes to the SMSF. You must make sure that every trustee or corporate trustee director completes a declaration within 21 days of starting.

If the ATO feels that you don’t understand these responsibilities, the ATO can direct you to undertake an education course. Remember, even if you have an administrator or an SMSF professional managing your fund – you are still the trustee and the trustee duties and responsibilities remain with you.

If you or someone in your family has a SMSF, then make sure they perform their annual compliance duties. This will typically involve the services of an accountant, who can prepare and lodge the necessary returns, minutes and reports.

If you have a SMSF then the chances are that you also have other types of trusts in your life, such as a Family Discretionary Trust. Once again, there will be annual compliance duties that need to be performed, and your accountant can assist with these.

Estate Planning is a specialised area of law

What your accountant cannot do for you, is provide legal advice about the control and succession of these different types of trusts as part of your estate plan.

It is critical that you understand that you can only give away in your Will what belongs to you personally alone at the date of your death. This means that – unless special arrangements are made – you cannot rely upon your Will to deal with the assets held in your super or in any other type of trust – because you do not own them.

This is where a lot of people get confused, and leave gaping holes and mess in their estate plan after they die. You need to take the (early) advice of a lawyer who specialises in trusts and estate planning, to achieve a modern integrated plan that deals with ALL of the assets you own as well as those you control.

Ask your specialist estate planning lawyer about Binding Death Benefit Nominations for your SMSF, and a global review of your trust deeds as part of putting your affairs PROPERLY in order. Work with your lawyer so you can truly protect yourself, your family and your assets.

So … if you or someone you know has a fair bit of super saved-up, and want to ensure that the Government doesn’t get too much of it when you die, maybe it’s time to put your affairs in order, and create a modern integrated estate plan before it’s too late?

Be cautious, and take advice before you decide.

When it comes to Wills, asset protection & estate planning in Australia, you can trust the oldest law firm in South Australia, Genders & Partners to guide you through the tough decisions you must make for your family’s future care and welfare.

If you have any questions, or would like further information, please go to our website www.genders.com.au where you can book a free 15-minute phone consultation on my schedule: https://calendly.com/genders/15min

We can help you to protect yourself and your family. We look forward to being of service.

Want to find out more about super death benefits?

More Estate Planning Resources

All these and many more estate planning and asset protection options are available for discussion with the oldest law firm in South Australia.

Genders and Partners will work with your Financial Advisor and/or Accountant to structure your estate planning as appropriate to your circumstances, including advice as to the use of testamentary trusts.

Disclaimer

The information contained in this document is intended as general information only and has been prepared without taking into account the needs, objectives or financial information of any particular person.

Prior to making any decision, you should assess whether the information is appropriate to your particular needs, objectives and financial circumstances.

While Genders and Partners has taken reasonable care in the preparation of this information, subsequent changes in circumstances (including legislative change) may occur at any time and may impact on the accuracy of this information.

The information contained in this article was correct at the date of editing: 3 August 2025, but might not represent the current state of the law in your jurisdiction.

Self-Managed Super Funds – meeting your obligations

Author: Rod Genders

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