Q&As

Where all of the trust property is being appointed to the beneficiary absolutely (and the trust will be brought to an end), but the trustees wish to retain certain funds to meet tax liabilities and costs, is it necessary or advisable to refer to such retention of trust assets in the deed of appointment, and if so, in what terms?

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Published on LexisPSL on 31/01/2020

The following Private Client Q&A provides comprehensive and up to date legal information covering:

  • Where all of the trust property is being appointed to the beneficiary absolutely (and the trust will be brought to an end), but the trustees wish to retain certain funds to meet tax liabilities and costs, is it necessary or advisable to refer to such retention of trust assets in the deed of appointment, and if so, in what terms?

This QA& assumes that:

  1. the trustees and the recipient beneficiary are all residents in the UK

  2. the trust in question is governed by English law

The trustees’ right to be indemnified against proper trust expenses out of the assets of the trust is a proprietary right and as such, is not lost simply by transferring the assets to a beneficiary. The trustees can therefore (subject to the rules which apply to the tracing of property) follow the assets and can recover the amount needed to pay the expenses.

However, as a possessory lien is clearly more valuable than a non-possessory lien, it is generally thought prudent for the trustees to retain sufficient assets to meet anticipated liabilities. In X v A, it was held that the trustee lien extended to liabilities which the trustees of a trust that held land mig

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