Role of the trustee

Question 1

What is an inter-vivos trust?

Answer 1

A trust created during the lifetime of the settlor

Question 2

What are the options of how to create an inter-vivos trust?

Answer 2

• Transfer on trust
• Self-declaration of trust

Question 3

What are the options when an intended trustee disclaims the trusteeship?

Answer 3

1. Trust instrument may contain express power to appoint trustees
2. No express power or it can’t be exercised, disclaiming trustee has power to appoint their own replacement under s36(1) and 36(8) Trustee Act 1925
   OR, if disclaiming trustee does not wish to exercise their power:
3. Beneficiaries with Saunder v Vautier rights have the power to appoint trustees under s19 Trusts of Land and Appointment of Trustees Act 1996 (TLATA)
4. Last resort, the courts have a statutory power to appoint trustees under s412 TA 1925

Question 4

Who is able to be a trustee?

Answer 4

s20 LPA 1025 - any person except a minor can be a trustee

Question 5

What is the maximum number of trustees allowed?

Answer 5

No max or min, except for trusts of land - legal title may only be held by max 4 people

Question 6

What happens if the executors of a will are unable or unwilling to act?

Answer 6

An administrator will be appointed

Question 7

Who has the power to replace trustees of new testamentary trusts?

Answer 7

An express power must first be looked for, if not:
- s36 TA 1925
- s19 TLATA (appointment by beneficiaries)
- s41 TA 1925 (appointment by the courts)

Question 8

What happens when a legacy is given absolutely to a minor?

Answer 8

Personal representatives need to hold the assets on trust for the minor and invest in them in accordance with their statutory powers of investment and utilising powers of maintenance and advancement until the minor turns 18.

Question 9

What is under s42 Administration of Estates Act 1925 in relation to testamentary gifts to minors?

Answer 9

Personal representatives can appoint trustees and give the legacy to the trustees