Firstly, I’m not a practitioner (which I appreciate may get be cancelled), but I may well need one!
I am a co-trustee of a life interest trust set up after my father’s death. The trust holds proceeds from a house sale, with my mother as the life tenant (beneficiary). The trustees are myself, my mother, and my sister. My sister also holds Lasting Power of Attorney (Property & Finance and Health & Welfare) for my mother, who lives in a care home and has Parkinson’s and some dementia but still demonstrates capacity in many areas.
Recently, I was informed by my sister of the following “Regarding Dad’s will and the associated trust matters, could you please contact XXXXXXXX as they are handling these matters moving forwards.” This has given me some cause for concern as I’ve not been involved in deciding who to instruct etc. But I don’t know enough to respond factually yet.
Of note, grant of probate has been received and the trust is registered with Gov.UK (me as lead trustee). What should I be mindful of going forward here? I’m a little concerned that a trustee may have acted unilaterally, potentially mixing roles as a trustee and LPA.
Anyway, I want to ensure I handle this correctly and uphold my trustee duties.
Thank you in advance for any guidance and expertise.
Kirsty is of course entirely right. However, I spend a lot of my time pro bono helping friends, former clients, and family in selecting legal advisers and asking them the right questions (and, more often than I’d like, correcting some answers). When I was in practice I expected to first reformulate clients’ questions so I understand how daunting it can feel but any good adviser will help you with this.
Some general hints:
1 make sure you get a specialist from the Law Society or STEP or a recommendation from someone who has had a good previous experience
2 do not practise false economy on fees; a trustee who properly and reasonably takes advice personally to establish that the trust is being administered lawfully can expect to ultimately have the trust fund meet the costs i.e. not for a family vendetta.
3 trustees must normally act unanimously in exercising their powers. Sometimes the trust document permits majority voting but I have never come across one which allows carte blanche to just one of several. That general rule gives each trustee a veto. Instructing solicitors unilaterally on behalf of the trust itself may be unlawful unless the trustee does so initially on a personal basis as in 2 above. All trustees are entitled to be on the trust bank account mandate and the title documents of any trust asset. Chattels are a vulnerable area as they rarely have such documents but similar paperwork like a car Vo5 may be sometimes help.
4 the possible incapacity of one trustee is a key area; holding a property and affairs LPA does not permit the holder to act in place of a donor who is a trustee of a trust and has to be carefully operated where the donor has not lost capacity entirely. If an individual has lost capacity to act as a trustee there is a statutory power of removal but ascertaining that definitively will prudently require a medical opinion. A trustee can always resign voluntarily where two trustees remain but again such an opinion is a wise precaution. To hand over the trust management to the children may require much a lower retention of capacity than continuing to act. I can recall those with full capacity who have chosen to do so (and to hand over the car keys) without much persuasion. Apart from anything else a care home is not the ideal venue for conducting trustee deliberations.
5 internal family politics is invariably a key factor and the great art is to avoid the nuclear option by trying to chart a course that preserves amity if at all possible. So negotiating a mutually acceptable modus vivendi with the sister is ideal, and cheap, but if this is a dead duck already a solicitor’s letter may show you are not joking. In such a situation the signature needs to come from a senior officer and not a lowly rating.
A trustee of registered land has a duty to change the title so that the deceased’s name is removed (if it is there) and the names of the 3 trustees are put on the register together with a Form A restriction. A trustee duty can be enforced by each trustee alone.
As you have now sold the property presumably the money was paid into a bank account in the name of you and your sister—at least. If you are still looking for a trust bank account it sounds like the sale proceeds may not even be in a one-off separate account, unless in a solicitor’s client account. That would need urgent attention.
Thank you for the detailed replies; very much appreciated.
The property was sold by my sister acting as an LPA for my mother, who is now in a care home. I have no issues with any of that, but outwith the house sale (which mum ok’d), there is a potential other can of worms regarding her current capacity and financial decisions being made (or not…) by the LPA. That’s also why I may need some professional advice!
And yes, the funds relating to the trust (dad’s side) are in the estate agent’s client account - no other accounts have been set up, but that was a recent aim following grant of probate (only through a month or 2 ago), which the solicitors would not move on without.
Thanks again, and understand if this is getting a bit too much for the forum. I’ll follow your advice regarding counsel!
Noted but as mother is a life tenant her LPA attorney had no right to sell the property as she did not own it. If she alone entered into a contract as attorney it was as null and void as her contracting to sell Tower Bridge (which I also doubts she owns)Presumably she managed to finesse the transfer of title to the purchaser. Y O Y do lay clients rush in where Jack would fear to tread? Is she a dab hand at Russian Roulette?
Hi Jack, thanks again for your perceptive feedback. Also, it’s the first time I’ve seen Y O Y used, which I rather like and intend on employing in the future!
As you say, you need to engage someone to give you paid professional advice. This isn’t a site for free advice to lay people. And we cannot give advice anyway as we do not have sight of all the relevant documentation/ understanding of all surrounding circumstances.
I suggest you find a local trust specialist solicitor.
Apologies if that came across as a question. Given Jack’s helpfulness, and the lack of PM facility, I felt I should at least provide him a potentially interesting titbit. That was concurrent to my search for a paid professional.
Anyway, thank you for the comments, and I hope you have a lovely rest of the week.