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'Golden Years' with a 'Golden Opportunity'? What is a SMSF Solicitor Certificate?




Working towards your retirement with a Self-Managed Super Fund (SMSF) can provide several benefits and opportunities for long-term financial planning. Self-managed superannuation funds (SMSFs) are privately managed super funds which are common for people saving for retirement or small businesses. SMSFs differ from traditional industry or retail super funds as you are in charge of investment, insurance, and compliance with superannuation and taxation laws. Many small business owners have their own SMSF, and the members are commonly trustees in their own right or through a corporate trustee.


What is a SMSF Solicitor Certificate?

For SMSF loans, a guarantor may be required if the fund does not have sufficient assets to secure a loan on its own. Often SMSF loans provide equity for investment properties, shares, or other managed funds. Both borrowers and guarantors are usually required to obtain independent legal advice before finalising a SMSF loan. A SMSF Solicitor Certificate serves as evidence that a solicitor has given you legal advice regarding the loan documentation, guarantor obligations and potential risks involved. Most banks and financial institutions make it compulsory for you to obtain a SMSF Solicitor Certificate, as they want to ensure you understand the obligations of guaranteeing a SMSF loan.


How does a SMSF loan work in practice?

SMSFs can borrow money under a Limited Recourse Borrowing Arrangement (LRBA). This means that a trustee attains a loan from a third-party lender and uses those funds to purchase a single asset to be held in a separate trust. In the event that the loan defaults, the amount the lender can have recourse to is limited to the assets held in the separate trust. This means that the remainder of your SMSF is protected.


What does it mean to be a Guarantor?

While LRBA may sound like a safe option for borrowing money, the structure of your SMSF needs to be considered. Often directors of the trustee company are also the beneficiaries. When this is the case, if the corporate trustee borrows on behalf of the SMSF, a lender often requires the beneficiaries to guarantee the loan. Under this personal guarantee, a lender can have access to your personal assets, and you will be responsible for paying shortfall after any security assets are sold as well as any enforcement costs incurred by the lender.

What about consumer protections?

Unfortunately, most SMSFs are not protected by the National Consumer Credit Protection Act 2009 (Cth). This is because most SMSFs have a company as trustee and bare trustee, rather than a natural person. As a result, borrowers and guarantors are not entitled to the same consumer protections as natural persons.


Engaging a Solicitor

Remember, managing an SMSF requires time, effort, and a thorough understanding of legal and compliance obligations. It's crucial to stay informed, seek professional advice, and regularly review and adjust your investment strategy to ensure your SMSF remains on track to support your retirement goals.


If you are considering obtaining a SMSF loan and agree to be a guarantor, your bank or broker will issue you with various documents that need to be reviewed by a solicitor. It is crucial for you to obtain independent legal advice to ensure you are fully informed about the potential risks, including enforcement against you if the loan defaults.


Our experienced team can provide you with the necessary legal advice and a SMSF Solicitor Certificate.

Call: (08) 7325 0219

E-mail: info@cpclawyers.com.au







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