Question for forum

Is an executor with power reserved still a trustee?

An executor has power reserved leaving 2 executors (a brother and sister) who don’t get on, and there is a legacy to the 2 children of the brother and the one with power reserved (his wife). Will appoints executors “ (hereinafter called my Trustees which expression shall include the survivor of them or other the trustees or trustee for the time being hereof) to be the Executors and Trustees of this my will”.

Legacy gives £50,000 “to such of my grandchildren as shall be living at the date of my death and attain the age of 25 and if more than one in equal shares”

So, questions:

i. Is the executor with power reserved still a trustee or do we need a deed of appointment (wife)/retirement(sister) or just retirement of sister?

ii. Does the ‘trust’ for the grandchildren only take effect when the estate has been finalised, ie can the money be paid into a separate trust account now or only after everything else has been finalised? This raises the question of timing so should the account be opened by the executors before the deed has been executed or can it be done before?

iii. It strikes me that this is a contingent legacy and not vested, so what implications are there for retiring trustee, would an indemnity suffice?

This is a file I have inherited where a simple deed of appointment/retirement has been done trying to just apply the change to the single clause of the will that gives the legacy without any indemnity, rather than to the ongoing trust and I am not happy with it.

Marie Granby TEP


Maxwell Hodge Solicitors

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i) In the absence of words limiting trustees to those who have proved the will, I believe that all those named as executors are the trustees, including the one with power reserved. If the executor with power reserved is to act as trustee, I understand it is “good practice” to execute a confirmatory deed to this effect to avoid questions (and doubts) being raised by third parties who might deal with the trustees

ii) The executors can satisfy the legacy at any time and do not need to wait until everything is finalised. I suggest any account is opened only once the situation with the trustees is resolved.

iii) Yes, the legacy is contingent, unless all of the grandchildren have already attained the requisite age. If nothing has yet been transferred to the trustees in satisfaction of this legacy, I can see no reason for the retiring trustee to have an indemnity. It might be a different situation if the deceased died some time ago and the trustees have not got around to doing anything about the legacy.

It is not feasible to comment upon the effectiveness of the deed of appointment/retirement without knowing its full content. However, unless you are advising the retired(?) trustee, need the lack of an indemnity be a matter of concern?

Paul Saunders FCIB TEP

Independent Trust Consultant

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