Trusts can be used as a way of protecting your assets until the beneficiary is old enough to look after the money themselves.
A trust means that you assign responsibility of the finances over to a trustee. This can be quite a demanding role and you should know what’s involved before agreeing to become a trustee.
Trustees have various duties and powers which are given to them either by the general law, the Trust deed (or Will) or a combination of both. It is essential that a Trustee understands the duties imposed on him and the powers available.
If there is more than one Trustee they must act unanimously. Loosely:-
"Duties" are obligations imposed on Trustees instructing them to do certain things. "Powers" are permissions, allowing the Trustees to do certain things.
It is essential to consult the Trust Deed (or Will) itself to see what the powers and duties of a particular trust will be.
Trustees manage Trust Funds on behalf of the Settlor (the person who sets up the Trust), for the benefit of the Beneficiaries. The Trustees must make sure that their actions are in the best interests of all the Beneficiaries. The Beneficiaries have the power to make sure the Trustees are doing so and they may take legal action against the Trustees if they act outside the terms of the Trust.
All Trustees must be over 18 and mentally capable. They should ideally also have a sound financial history. It is possible for a Beneficiary to also be a Trustee but this can give rise to a conflict of interest. There is no limit to the number of Trustees a particular Trust can have (with the exception of land, where there cannot be more than 4 trustees), but it is strongly advised that there be at least 2. It is possible for a Trustee to retire but the other Trustee(s) must agree to this. It is not possible for you to retire if you are the only Trustee unless someone else is appointed to act in your place. Trustees should also remember that even after retiring they can still be held responsible for their actions before retirement.
There are some circumstances in which a Trustee can be removed against their Will, for example if they are made bankrupt or remain outside the UK for more than 12 months or refuse to carry out their duties.
Can the actions of a Trustee be challenged?
If it can be shown that a trustee has breached their duty (either their legal duty or a duty pursuant to the terms of the trust) then the actions of a trustee may be subject to legal challenge. In some circumstances trustees may be removed from office by an order of the court.
Do all Trust disputes result in court proceedings?
No. Wherever possible we will seek to resolve the dispute informally by negotiation and alternative dispute resolution. The majority of trust disputes reach settlement without the need for court proceedings to be commenced. Should this approach not prove successful however, we have experience and expertise in trust litigation and court proceedings can be commenced.
How much does a trust dispute cost?
It is difficult to accurately predict the total cost of any dispute as no two disputes are the same and the costs are largely dictated by the amount of work required to bring the dispute to a final resolution. We appreciate that clients do not like uncertainty in relation to legal costs and depending on the circumstances of the case, we are able to offer a number of funding options to clients in order to suit their needs.
What are duties and powers of a Trustee?
A trustee has the legal responsibility for assets held in a trust and is required to manage the trust in accordance with the specified terms and the settlor’s wishes. Trustees are subject to various duties and as part of their function, including a requirement to: -
- Act with responsibility and care;
- Administer/manage the trust in accordance with the trust deed;
- Act fairly and impartially to all beneficiaries;
- Keep detailed records to demonstrate the trust has been managed properly;
- Not to personally benefit from the trust.