Discretionary trust
Discussion
Of course not - provided that it is the will that establishes the existance of the discretionary trust.
If, OTOH, the discretionary trust has been set up by the testator during their lifetime, and has assets in it now (and the will will put further assets into it), then depending on the terms of the trust instrumen) the trustees can sell assets that are now in the trust.
If, OTOH, the discretionary trust has been set up by the testator during their lifetime, and has assets in it now (and the will will put further assets into it), then depending on the terms of the trust instrumen) the trustees can sell assets that are now in the trust.
I am not an "expert" in trust's set up by will but I am in discretionary trusts / life interests / a & m etc set up with no will during the settlors lifetime where the settlor has been a beneficiary or not. Also when the settlor has reserved certain powers over the trustee.
The trustee(s) has a fiduciary duty to the beneficiaries and must act in their best interests at all times, when resolving to do something they must be able to do it by the power given in the deed or declaration, if it is in there and in the best interests of the beneficiaries then they have the discretion to proceed. It should be writing in a trustee(s) resolution stating the action taken, the clause giving them the power and why this is in the best interests of the beneficiaries.
As I say I do not deal with will trusts but unless their is reserved powers surely the Trustee(s) are bound by the deed or declaration and not what the settlor wants and can use their discretion as legally they own the assets and not the trust or the settlor providing the act within their powers given under the deed of declaration and within the best interests of the beneficiaries.
If you think that the Trustees have acted not in the best interests of the beneficiaries you will have to bring action against them and not the trust.
The trustee(s) has a fiduciary duty to the beneficiaries and must act in their best interests at all times, when resolving to do something they must be able to do it by the power given in the deed or declaration, if it is in there and in the best interests of the beneficiaries then they have the discretion to proceed. It should be writing in a trustee(s) resolution stating the action taken, the clause giving them the power and why this is in the best interests of the beneficiaries.
As I say I do not deal with will trusts but unless their is reserved powers surely the Trustee(s) are bound by the deed or declaration and not what the settlor wants and can use their discretion as legally they own the assets and not the trust or the settlor providing the act within their powers given under the deed of declaration and within the best interests of the beneficiaries.
If you think that the Trustees have acted not in the best interests of the beneficiaries you will have to bring action against them and not the trust.
rfisher said:
That would be covered in the 'trust period' section?
Unlikely. There will be a section that sets up the trust and then puts assets into it. People can make more than one trust and put some assets into one and other assets into another. It sounds like the question is more whether the testator has set up a trust during his/her life and put the assets in question into it.
One thing is for sure though: if the assets have not been put into a trust they are still owned by the testator. So the number one complainant if the trustees are trying to do something with those assets is the testator, not the putative beneficiaries.
i don't know of any technical reason why a lifetime trust couldn't be established in the same document as a will, but it seems HUGELY unlikely that somebody would do so. Even more so if they are being advised, which you would imagine they were - setting up trusts isn't a DIY job.
So caveat aside, there is no trust until the testator dies. There are no trustees either. So the answer is no!
So caveat aside, there is no trust until the testator dies. There are no trustees either. So the answer is no!
Gassing Station | Speed, Plod & the Law | Top of Page | What's New | My Stuff