The Trustees' Role

In some cases the estate may continue to exist in the form of a trust, even after the administration is otherwise complete. This can occur for a variety of reasons, for example, there may be underage beneficiaries, or life interests to deal with and/or there may be property that the estate wishes to hold onto in the meantime.


The trustees will usually be the existing executors of the estate unless otherwise provided for in the Will. A trustee is a person appointed to hold the trust’s assets for the benefit of beneficiaries. The trustees are obliged to act honestly and in good faith for the benefit of all the beneficiaries. Trustees have legal control of the trust’s assets, hold title to the assets in their own name, and have the power
(subject to the Will) to deal with those assets as they see fit. Trustees must be:

  • Over 18 years of age.
  • Mentally capable.
  • Aware they have personal liability for any losses that may be incurred by the trust because of their own dishonesty or negligence.
  • Trustees should also:
  • Understand that they may be personally liable for taxes and other charges such as property rates, payable by the trust.
  • Acknowledge that they may be personally liable for trust debts, or guarantees given by the trustees.
  • Be trustworthy, as they must manage the trust’s affairs in a way that will provide the maximum benefits possible to the beneficiaries.


Trustees’ duties and responsibilities


Trustees have a number of legal duties and responsibilities set out in the Trusts Act 2019: some are mandatory and some apply by default but may be modified or negatived by the Will. It’s also important that trustees remember that they are only allowed to do those things which they have legal power to do. Again, there are some standard powers set out in law, but the Will can expand on these.                                                                                

The mandatory duties of trustees (all references are to the Trusts Act 2019) are to:                                     

  • Know and adhere to the terms of the Will (s 23 & s 24).
  • Act honestly and in good faith (s 25).
  • Act for the benefit of the beneficiaries (s 26).
  • Exercise their powers for a proper purpose (s 27).
  • The default duties of trustees (which may be modified by the Will) are to:
  • Invest prudently (s 30, and also s 58 and s 59 which set out a number of factors which trustees should take into account, where appropriate, when making investment decisions).
  • Not exercise any power for their own benefit (s 31).
  • Actively and regularly consider whether they should be exercising one or more
  • of their powers or discretions (s 32).
  • Not agree in advance to place a limitation or restriction on the future exercise of any discretion (s 33).
  • Avoid conflicts of interest (s 34).
  • Treat the beneficiaries (or different groups of beneficiaries) impartially - which
  • doesn’t mean they have to be treated equally (s 35).
  • Not make any profit from being a trustee, and act without being paid (except for refunds of reasonable out-of-pocket expenses) unless it’s provided for in the Will (s 36, s 37).
  • Act unanimously, unless the Will provides that a decision of the majority of the trustees is binding (s 38).

In addition, trustees have a ‘general duty of care’ (which may be higher if they have special knowledge or experience, or are acting in their professional capacity, such as a lawyer or accountant).

In practical terms, the Will states who is to get what, and where and when any estate funds are to be paid. It’s the trustees’ duties to carry this out. In doing so, they should:

  • Act promptly.
  • Not delegate any of their responsibilities, unless permitted to do so.
  • Where appropriate, take specialist accounting advice to ensure the estate complies with its tax obligations.
  • Pay the correct beneficiaries at the correct times.
  • Keep proper accounts and give information to beneficiaries as required.