Transition from personal representative to trustee
Transition from personal representative to trustee

The following Wills & Probate guidance note provides comprehensive and up to date legal information covering:

  • Transition from personal representative to trustee
  • Definition of trusts
  • Differences between personal representatives and trustees
  • When the transition occurs

Definition of trusts

Trusts may be created by:

  1. Will

  2. during the lifetime of the settlor

A trust is created where one or more persons (the trustees) are under an obligation to hold property in their name or under their control (the trust fund) and to administer that property in accordance with the provisions of the trust, which can be enforced by the beneficiaries for the interests of those persons entitled under the trust (the beneficiaries).

No particular wording is required to establish a trust, but the terms of the trust must be unambiguous.

Three certainties are necessary to create a valid trust:

  1. the words creating the trust must be imperative

  2. the subject matter of the words must be certain

  3. the persons or objects to benefit must be certain (Knight v Knight (1840) 3 Beav 148, 9 LJ Ch 354)

A PR may become a trustee of property passing under the terms:

  1. of the Will, or

  2. of the intestacy rules

Both PRs and trustees act in a fiduciary capacity and must:

  1. act with utmost good faith

  2. not profit from their position (unless the Will or the court makes provision for remuneration)

Once the PRs have paid all:

  1. liabilities

  2. debts

  3. administration expenses

  4. legacies and

  5. the remainder of the estate has been distributed

then in respect of any property not immediately distributable:

  1. they may take on the office of