Trustees of Bare Trust and Residuary Gift

We are renouncing our co-executorship of a Will, and we are also appointed as trustees of the residuary trust of the Will. The wording of the Will makes the appointment of executors and trustees together, which is where the problem arises. so we will need to consider separately whether we need to renounce those trusts – they are not ongoing as such.

The children are over 21 and I think this means that although we need to renounce any entitlement to a grant as a residuary legatee, there is no actual trust of which we need to disclaim the trusteeship residuary gift, where although it is stated to be on trust, it is only a bare trust for those persons, all adults, who will share in residue, and therefore whether there is any need to renounce that bare trust – if it were a full trusteeship then it would need to be renounced, the question is whether it being a bare trust which is essentially a nomineeship means that it does not need the formality of disclaimer?

Although the same persons may be defined in the trust instrument as Executors and Trustees the two offices are separate and distinct. If the executors so appointed renounce any remaining executors who prove will become trustees, as will administrators with the will annexed, if they act as trustees. The separate office of trustee does not need to be renounced, simply not undertaken. If renouncing executors have not acted i.e. have not accepted office they never become trustees in the first place.

The Non-Contentious Probate Rules 1987 are designed to ensure to ensure that someone can apply for a grant if named executors do not or will not, and in the last resort the Court will appoint (r. 52 and s116 SCA 1981). If no named trustee accepts office the Court will appoint: ss.41-43 TA 1925

Jack Harper