When to date a bare trust deed

For SMSF trustees & their advisers

When an SMSF borrows to buy property, the date on the bare trust deed is not a formality. In most states it is the difference between paying transfer duty once and paying it twice.

The principle underneath all of it

An SMSF LRBA can attract transfer duty (stamp duty) at more than one point. The property is bought and held by a separate holding trust (the bare trust), with the fund holding the beneficial interest until the loan is repaid. That structure is what section 67A of the Superannuation Industry (Supervision) Act 1993 (SIS Act) permits, and the bare trust deed records the custodian holding the asset on trust for the fund.^[1]

Each state and territory then asks the same question in its own way: is the custodian’s declaration of trust a second dutiable dealing, or part of the same transaction that already bore full duty on the purchase? If it reads as a second dealing, the fund can be assessed for duty twice on the same property. Timing the deed correctly is how that second charge is avoided.

Two points hold everywhere. First, duty follows the property’s location. A trustee in Currumbin buying in Sydney is under New South Wales duty law, not Queensland’s. Second, the concession in every state depends on the SMSF being the real purchaser and providing the whole price (deposit and balance) from its own resources. Keep the paper trail that proves it.

A 30-second LRBA refresher

Under sections 67A and 67B of the SIS Act, an SMSF can borrow to acquire a single acquirable asset, held in a holding trust, with the lender’s recourse limited to that asset.^[1] The fund holds a beneficial interest in the asset while the loan runs; once it is repaid, legal title can pass to the fund. The ATO’s ruling SMSFR 2012/1 sets out what counts as a “single acquirable asset.”^[3] The custodian (bare trustee) is usually a company that exists only to hold that one asset.

When to date the deed, state by state

There are three broad groups by state: before the contract, after the contract, or after the contract but before settlement. NT applies a stricter form of the first. The table is the quick reference; the notes under it give the reason and the source for each.

Fixed and nominal duty amounts are set by each state and change from time to time. The figures above were current at the last-reviewed date. Confirm the current amount with the relevant revenue office.

Before or on the contract: QLD, WA

These two want the trust in place first, so the custodian is buying as trustee for the fund from the outset.

Queensland. Date the deed before or on the contract date, and name the bare trustee as buyer on the contract (for example, “Custodian Pty Ltd as trustee for the [Fund] Property Trust”). Where full transfer duty is paid on the purchase, sections 130A and 130B of the Duties Act 2001 (Qld) carry the custodian arrangement without a second charge.^[4] If the deed came after the contract, the custodian could look like it bought in its own right and then declared a trust: a separate dutiable declaration, and a double-duty risk.

Western Australia. In WA the contract is an Offer and Acceptance; date the deed before or on it. The apparent-purchaser and bare-trustee provisions (sections 117 and 118 of the Duties Act 2008 (WA)) give nominal duty, currently $20, where the fund provided the purchase money.^[5]

Before the contract: NT

Northern Territory. Date the deed before the contract. This is closer to black-letter law than the others: Schedule 1, item 7 of the Stamp Duty Act 1978 (NT) gives concessional duty of $5 only where the declaration of trust is “made in anticipation of the conveyance,” so it must actually precede it. A mistimed deed can be assessed as a full dutiable conveyance under section 56BA.^[6]

After the contract: NSW, ACT, TAS

Here the custodian signs the contract and the declaration of trust follows.

New South Wales. Date the deed on or after the contract, and make sure the SMSF is already established when the custodian signs. Section 62B of the Duties Act 1997 (NSW) gives a fixed duty (currently $750 for deeds executed on or after 1 February 2024) on the custodian’s declaration, provided ad valorem duty was paid on the purchase and the fund is the real purchaser.^[7] Note the nuance: some NSW practitioners accept a deed executed before exchange where the contract itself does not declare the trust, but the conservative, Revenue NSW-aligned path is on or after the contract.

Australian Capital Territory. Date the deed after the contract. Under section 56 of the Duties Act 1999 (ACT), the apparent-purchaser provision, the ACT gives a full exemption (nil duty) where the property is held for the real purchaser who provided the money.^[8]

Tasmania. Date the deed after the contract. Section 39 of the Duties Act 2001 (Tas) applies concessional duty of $50 to the custodian’s declaration and $50 to the later transfer to the fund.^[9] One Tasmanian trap worth knowing: the general trust concession in section 46 does not apply to SMSFs, so the section 39 pathway is the one to use.

After the contract, before settlement: VIC, SA

Victoria. Date the deed after the contract is exchanged but before settlement. The custodian pays ordinary duty on the acquisition; the declaration of trust is then exempt under the apparent-purchaser provision, section 34 of the Duties Act 2000 (Vic).^[10] The State Revenue Office updated its custodian and holding-trust guidance in June 2026. Worth reading before you act.

South Australia. Date the deed after the contract and before settlement. Section 71(7a) of the Stamp Duties Act 1923 (SA) means the transfer to the fund is not treated as a separate dutiable disposition, provided the original purchase bore ad valorem duty, the fund financed the whole acquisition, and the property was held on trust for it.^[11] The result is one duty charge, not two.

The trap that catches interstate buyers

A worked example, because this is where the money is lost.

A trustee couple in Currumbin, Queensland, set up an LRBA to buy an investment unit in Newcastle, New South Wales. Reasonably enough, their instinct is to do it “the Queensland way” and sign the bare trust deed before the contract. That is the wrong rule for this purchase.

The property is in New South Wales, so NSW duty law governs. The NSW path is the opposite: the custodian signs the contract, the SMSF must already be in existence at the contract date, and the declaration of trust is dated on or after the contract to attract the fixed $750 under section 62B.^[7] Date the deed the Queensland way for a NSW property and the section 62B concession can be lost, with the declaration assessed on the full value of the property. On an $800,000 unit, that’s the difference between $750 and a second full duty bill.

Same lesson as the opener: the property’s state sets the rule, every time.

Where this sits after the 2026 residential ban

From 10 August 2026, SMSFs can no longer establish a new LRBA to buy residential property. The measure sits in the Treasury Laws Amendment (Tax Reform No. 1) Act 2026 (Act No. 49 of 2026), which received Royal Assent on 26 June 2026.^[12] From commencement, an LRBA can only acquire real property that is business real property within the meaning of section 66 of the SIS Act. Arrangements in place before commencement are grandfathered, and contracts exchanged before 10 August 2026 are protected even if settlement falls later.^[12]

So the deed-timing rules in this article now matter mainly for commercial (business real property) LRBAs going forward, and for existing or pre-deadline residential arrangements still settling. We cover the ban in detail in a separate note: the 2026 LRBA ban, confirmed. (ATO guidance is being updated to reflect the change; confirm current detail before acting.)

Where this leaves you

Contracting on a residential LRBA before 10 August 2026? The grandfathering only holds if the paperwork is correctly timed and sequenced. Confirm the deed date and the execution order with your solicitor now, not at settlement.

Setting up a commercial (business real property) LRBA? The state-by-state rules above still govern. The ban does not touch business real property, so these timing rules stay in daily use for the pathway that remains open.

Advising SMSF trustees? The interstate rule is the one worth flagging with clients early. A trustee in one state buying in another gets caught more often than the pure in-state case, and the fix is a conversation before contract, not after.

What we do here, and what we don’t

The bare trust deed is a legal document, and its execution date has duty consequences. Preparing it, and getting the timing right for the state, is work for your solicitor or a specialist deed provider. Whether an LRBA suits your fund at all is a strategy question for a licensed financial adviser. Neither is something WE. SMSF does, and we say so upfront.

What we do is administer the resulting fund: recording the LRBA and the holding trust correctly in the accounts, reporting the fund’s beneficial interest properly, coordinating the independent audit, and keeping the arrangement compliant year to year. That is the boundary we work to, and it is set out on our services page. Before you sign anything, confirm the deed timing with your solicitor and the relevant state revenue office.

Get the one-page version

We have distilled the state-by-state timing into a single reference page you can keep on file or send to a client.

Download: WE. SMSF — Bare Trust Deed Timing (PDF)

Shaun McCheane — Chartered Accountant (CA ANZ), CA SMSF Specialist, Registered Tax Agent (TAN 26344877). Principal, WE. SMSF.

Last reviewed: 7 July 2026