A discretionary trust is created by Will. Two Trustees were appointed in the Will but both died in the lifetime of the Testator. Discretionary benficiaries include adults and minors.
What is the position regarding the appointment of new trustees?
Gary Taylor
Progressive Wills Ltd.
Where executors are appointed in the Will but have predeceased, the power of appointing new trustees rests with the executors
Julian Cohen, Solicitor
Thank you Julian.
If there were no executors or trustees appointed in the Will eg,due to the absence of an executorship clause, and the whole estate passed into the discretionary trust what would be the position regarding trustees to manage the trust?
Gary Taylor
Progressive Wills Ltd.
If there are no executors in the Will the power of appointing new trustees rests with the administrators of the estate. There can be no question of the estate passing into a discretionary trust without there having been an administration period.
Julian Cohen, Solicitor
Whoever obtained the grant would have the power to appoint trustees. If they failed to do so, they would become the de facto trustees.
If no grant is obtained, due to asset holders being willing to/encouraging the release of assets against an indemnity, there would be no one with authority to appoint trustees (absent an application to court) and any one purporting to be a trustee would be a trustee de son tort, meaning that they have all the liabilities of being trustee but none of the benefits (including the ability to validly exercise the trustee powers)
Paul Saunders
Thank you Paul.
So in the scenario set out ie a Will with no executor appointment and the whole estate passing into a discretionary trust who would be entitled to apply for the Grant? Would that be adult discretionary beneficiaries?
Gary Taylor
Progressive Wills Ltd.
Strictly, I understand it will be any beneficiary entitled in default of
the exercise of the trustees discretion.
If there is no default beneficiary, the default is to those entitled as
on intestacy.
However, the situation you have is not obviously covered by the
Non-Contentious Probate Rules, and so I suggest you might approach the
Probate Registrar to see if they might be willing to exercise their
discretion as to whom to issue a grant.
It may be preferable to have a professional involved as any beneficiary
acting as personal representative/trustee would not be entitled to
exercise any discretion in their own favour.
Paul Saunders