Your SMSF trust deed: what it must say, what to check, and why it matters at audit and at death

Most trustees sign a trust deed once, file it, and never open it again. That is a mistake in a fund that may pay pensions for decades and eventually pay death benefits to someone else. The deed is the document that says what your self-managed super fund (SMSF) can do. This article sets out what the ATO says about it, based on the ATO's "Create the SMSF trust deed" page (last updated 2 April 2025), its record-keeping page and its audit guidance for SMSF auditors, read on 17 October 2026.

What the deed is and what it must do

The ATO says a trust deed is a legal document that sets out the rules for how the SMSF will operate. It cannot override the law: "together with superannuation laws, they form the governing rules of your SMSF". The ATO says the deed must:

• be tailored to your fund to meet its objectives and the members' needs
• state that the fund's sole purpose is to pay retirement benefits to members or death benefits to members' beneficiaries.

See our article on the sole purpose test.

What it should cover

The ATO says the deed should specify:

• who the trustees are
• who can be a member and their rights, such as rights to amend the deed and how members choose investments
• when and how benefits can be paid, as a lump sum or an income stream
• how illness, incapacity and death of the members is dealt with, for example enduring power of attorney and binding death benefit nominations
• the situations that would require the SMSF to be wound up.

These are the points that matter most for retirees. If the deed doesn't allow a particular pension type or a binding nomination, the trustees can't simply do it.

Death benefit nominations

The ATO says that if the deed allows it, a member can use a death benefit nomination to say who a death benefit is paid to and in what proportions. A binding nomination directs the trustees to pay the benefit to a legal personal representative or a dependant. A non-binding nomination tells the trustees the member's preferred beneficiaries but leaves the final decision to them. The ATO recommends speaking with an SMSF professional. See our articles on binding death benefit nominations, on what happens with no nomination and on trustee succession.

Who prepares it and who signs it

You can engage someone to help, but because it is a legal document the ATO says to make sure it is prepared by someone competent. If you buy a package or kit, make sure the deed complies with current law and is unique to your fund's objectives and your members' circumstances. All trustees must sign and date the deed and ensure it is properly executed under the relevant state or territory laws.

How it shows up at audit and in your records

• Record-keeping. The ATO lists the trust deed among the trustee records to keep for a minimum of 10 years. See SMSF record-keeping.
• Audit. The ATO's guidance for auditors says they review the trust deed when checking whether the fund meets the definition of an SMSF, when checking the sole purpose test, and when checking pension rules and the acceptance of contributions. See what the auditor checks and what makes a fund an SMSF.
• Contributions. Whether you can accept a contribution can depend on the deed as well as the law; see accepting contributions.

A deed review checklist

1. Find the original signed deed and every amendment, and check each is signed, dated and executed.
2. Check it states the sole purpose accurately.
3. Check whether it allows the pension types you use or plan to use.
4. Check whether it allows binding death benefit nominations, how long they last, and whether the current nominations comply.
5. Check what it says about incapacity and enduring powers of attorney, and who can act as trustee if a member can't.
6. Ask your SMSF professional whether it is current with changes in the law. The ATO's guide to starting an SMSF expects the deed to be reviewed, but the page read for this article doesn't say how often, so don't rely on a fixed timetable.

Worked example

Illustrative only, not personal advice.

Ken, 70, and his wife Dorothy, 68, set up their SMSF in 2009 with a kit deed. Ken wants a binding nomination in favour of Dorothy and, if she dies first, their two children equally. When he checks the deed, he finds it was never signed by Dorothy, and it says nothing about binding nominations. Their SMSF professional advises that the deed needs to be put right and updated before Ken relies on any nomination, and that the trustees should check the pension provisions at the same time. They have the deed amended, all trustees sign and date it, and file the signed copy with the fund's permanent records.

Sources

• ATO — Create the SMSF trust deed
• ATO — SMSF record-keeping requirements
• ATO — Compliance audit of an SMSF