Minimum number of trustees

Trusts Discussion
1

I’m a financial planner and not a lawyer.

Would someone on here clear up a very straightforward confusion.

The Law Society forum suggests that a trust can be operated by a sole trustee. So, where there are two trustees and one dies or retires or is removed through loss of mental capacity, leaving one remaining trustee, that one remaining trustee can make decisions and sign legal documents alone.

Yesterday, I attended a webinar where the solicitor delivering the session stated that there must be a minimum of two trustees and single trustee cannot act alone.

Can anyone provide a clear unequivocal answer and explain the basis?

Thank you in advance.

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2

I’m not sure where that has come from. Absent anything in the trust deed or dealing with land, trustees can act alone.

Even trusts of land can run with a single trustee until they come to dispose of it in some way.

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3

Thank you. The solicitor clearly stated that in all circumstances, a trust needed a minimum of two trustees and a sole trustee could not act until another had been appointed.

Thank you for clarifying this

4

Hi Robin

I am not a solicitor either but my understanding is that a trustee cannot retire to leave one trustee. If there are two and one dies that’s fine (although not if you want to sell a property as someone has mentioned), but one cannot retire to leave one.

I am not sure if there need to be two when establishing a trust (would seem to tie in with not being able to retire to leave one).

Why would you chose to have only one trustee anyway? Even if someone did die and you were left with one I would expect to see someone else appointed fairly quickly. You also need to be careful where a U.K. trustee dies leaving just a non U.K. one (although my understanding on this might be out of date as it’s while since I have come across it).

Sara

Sara Spencer ATII TEP | Trust Manager

www.trustandestate.co.uk

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5

Hi Sara,

The scenario that was put to the solicitor delivering the technical webinar as that there are two trustees and one trustee either dies or loses mental capacity. Ignoring property, can the remaining trustee act alone?

The solicitor said that in all circumstances, two trustees re required and at least one more trustee would need to be appointed.

As an aside, the solicitor also said that an attorney or a deputy can make decisions on behalf of a donor in donor’s role as trustee, where the donor has lost mental capacity; and that is definitely not the case.

So, I was left feeling unsure about a number of technical pieces of information that the solicitor gave out.

Thanks for taking the time to reply.

Kind regards

Robin

6

Subject to what the Trust Instrument says, an incapable Trustee cannot be removed without a replacement being appointed if s36 TA 1925 is being used.

It is possible for a sole Trustee to act but only where 1 was originally appointed.

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7

Thank you, much appreciated.

8

As a variation on this theme - one can have a sole trustee. However, a common provision in a will trust (or any other private trust) is that a sole trustee cannot exercise discretion to confer benefit upon himself and a second trustee who is not benefiting must agree.

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9

So, if there are two trustees, can one of the trustees simply resign, leaving a sole trustee to (presumably) appoint another?

What would prevent a trustee simply stepping down?

What are the implications for both the retiring trustee and the remaining trustee?

Is a letter of resignation sufficient, or does it require a deed of retirement?

10

The safest solution is usually a deed of retirement and appointment of new trustee. The provisions of the trust instrument relating to the number of trustees and arrangements for retirement and replacement must be checked very carefully. If, for example, the requirements are not satisfied the outgoing trustee will not be discharged and any future trustee actions will be ineffective. This can be catastrophic. See – for example Jasmine Trustees Ltd v Wells & Hind (A Firm) [2007] EWHC 38 (Ch). There is a nice section on this in Trust Taxation and Private Client Tax Planning, (Chamberlain, Harrison and Wallington)

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