Executors need to be wary if they find that their responsibilities under a will change from simply administering the Estate, to being a long term Trustee.
Some wills contain specific Trusts within their provisions, which may appoint persons other than the Executors as Trustees. Naturally, those appointed Trustees would be well advised to take expert advice if they are not professionals, such as solicitors or accountants.
However, some wills effectively become Trusts as a result of the provisions for dealing with the residue of the Estate. Mostly, but not always, this will be because the residuary beneficiaries are children under the age of 18. Those beneficiaries may take a capital interest at 18, but the will may provide that they only take their full interest at a later age, say, 21 or even 25. If the will takes effect when the child or children are very young, it could mean that the Trust operates for as much as, if not more than 20 years.
It is possible that Executors do not appreciate this consequence when taking on the administration of a will. It is of course, also possible for Administrators of an intestate estate, to also find themselves in this position.
The position of Trustee is a very onerous one, and can have huge responsibilities, particularly if the Estate is substantial. We also live in an increasingly litigious World, and statistics from the Courts show that actions against Trustees have increased dramatically in recent years.
If therefore, the Estate you are administering contains a Trust, then particularly if the residue of the Estate falling into the Trust is a significant amount of money, you should seriously consider appointing Solicitors to deal with the administration of the Trust, or at least getting specialist advice on Trustees duties and responsibilities. The Solicitor should be one experienced in Trust administration, and ideally a member of the Society of Trust and Estate Practitioners (known as STEP), which is an organisation formed of specialist lawyers, accountants, bankers and financial advisors.
About the author
Roger Pratt is a Partner and Head of the Private Client Department of Hopkins Solicitors LLP, and a member of the Society of Trust and Estate Practitioners. If you have a legal question on Wills, Probate, Intestacy, Trusts or any related matter, please contact Roger.