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The Role Of A Trustee

Trusts offer a means of holding and managing money or property for people who may not be ready or able to manage it for themselves. Used in conjunction with a will, they can also help ensure that your assets are passed on in accordance with your wishes after you die.

What is a trust?

A trust is a legal relationship which is created when a person (The ‘Settlor’) transfers assets to two or more other people (the ‘trustees’) with instructions that they hold the assets for the benefit of an individual or group of individuals (the ‘beneficiaries’).

To achieve this, the trust separates the legal ownership of the policy from the beneficial ownership. The legal ownership of the policy is given to the trustees who are bound by the terms and condition of the trust deed and subject to general trust law. It is their duty to hold and administer the trust property in the interests of the beneficiaries who will ultimately benefit from it.

Settlor

The Settlor is the legal name given to the person who creates the trust. The Settlor says in the trust deed how the trust’s property and income should be used.

Beneficiaries

The beneficiaries under a trust are the beneficial owners of the trust property and everything that takes place must be for their benefit. A beneficiary may be named or defined by description or class, such as the future issue of the Settlor or issue of my brother etc.

Trust property

This is the property (or ‘capital’) that is put into the trust by the settlor. It can be anything, including:

  • land or buildings
  • investments
  • money
  • antiques or other valuable property

Trustees

Trustees are the legal owners of the trust property. The role of the trustee is to hold the trust property and administer it for the benefit of the beneficiaries as directed by the trust provisions.

There can generally be any number of trustees but for our own and most trusts, the number ranges from 2 – 4.

Any person who is over 18 and sane can act as a trustee although we would tend to advise against appointing an individual who is bankrupt.

It is also possible for an institution to act as a trustee, such as ourselves, Countrywide Tax & Trust Corporation Limited. We can offer our services as a professional trustee.

It is possible for the same person to be both a trustee and a beneficiary.

The Trustee’s Duties can be summarised as follows:

  • all trustees should familiarise themselves with the terms of the trust so that they can administer it in accordance with the trust deed
  • all dealings with the trust fund by the trustees must be for the benefit of the beneficiaries
  • the trustees must use their utmost diligence to avoid any loss. If they are negligent and a loss arises they may be responsible for that loss to the beneficiaries
  • all trustees must act unanimously. Under English law, trustee’s decisions cannot be made by a majority of trustees unless the trust specifically allows this

Trustees Powers and Duties

Trustees have a range of statutory powers and common law responsibilities that they would be expected to follow.

Trustees Statutory Powers

There are several statutory powers and these can be quite comprehensive. The following highlights just a few of the main powers:

  • trustee powers of investment – Section 3 of the Trustee Act 2000 permits trustees to “make any kind of investment that he could make if he were absolutely entitled to the asset of the trust”. This provision is subject to any restriction imposed by the trust itself.
  • act in the best interest of all beneficiaries – The trustees must judge the suitability of investments having regard to the best interests of all beneficiaries, past and present
  • exercise reasonable care and skill – A trustee must pay regard to any specialist knowledge or experience that he holds
  • review investments from time to time – Trustees must undertake periodic reviews of the investments held by the trust
  • take proper advice – When considering any investments, or when carrying out a review of the investments of the trust, the trustees must obtain and consider proper advice
  • power to apply income for the benefit of child beneficiaries – The trustees have the discretion to apply the whole or part of the income of a trust for the maintenance, education or benefit of a child beneficiary
  • power to delegate – The Trustee Act 2000 empowered trustees to delegate to agents any of their functions except certain defined responsibilities

Trustees Common Law Responsibilities

Below are highlight just some of the many Common Law Responsibilities a trustee has:

  • duty to take account of the Settlor’s wishes – A settlor may sometimes write a ‘side letter’ to the trustees containing an ‘expression of wishes’. This is not binding upon the trustees, but would stand alongside the trust document and provide guidance to the trustees as to the way in which the settlor would like them to carry out their duties
  • duty to ensure fairness between beneficiaries – The trustees must hold the balance fairly between different categories of beneficiary e.g. if a trust provides that one class of beneficiary is to receive the income from the trust fund during their lifetime and a second class is to receive capital on the death of the income recipient, it would be unfair to the income recipient if the trustees were to invest in assets which produce little or no income, but offered the prospect of greater than usual capital growth
  • duty to take account of tax considerations – The trustees must take into account considerations such as tax and administrative costs when choosing investments

The above duties are just a few of the main considerations. With the use of a professional trustee, it is within their day to day routine to ensure that all of the trustee’s duties are followed.

Here at Countrywide we can offer a trustee service and the customer would see the following benefits:

  • as authors and creators of the Family Trust they are best placed to make any future amendments that could be necessary to ensure the maximum efficiency of the trust i.e
  • best use of tax legislation, optimising trust efficiency both before and after first and second death
  • efficient advisory service in the assignment/retirement of trustees

As a Tax & Trust Corporation who has of years of experience in both will writing and the financial services sector they can facilitate the best investment advice for property/funds within the trust. Under the ‘Trustees Act 2000’, trustees are duty bound to seek independent financial advice for monies in the trust, ensuring these are utilised in the best interest of the beneficiaries. Trustees have and will continue to be prosecuted by the beneficiaries where they consider their ‘duties of care’ have been neglected.

The Financial Advisers used to advise the trustees have extensive experience and advanced qualifications in the areas of retirement, taxation and trust planning.

Countrywide are the ‘one stop shop’ for all to ensure the Trust is managed as intended along with advice on key stages from ‘cradle to grave’. The documentation of the ongoing Trust management is as important to it’s tax ongoing efficiency as the Trust itself.

Remember, whilst you have the reassurance of professional expertise behind you, there is no annual fee levied. When you feel the need to take advice, our fees will be disclosed and agreed before any work is undertaken and you have the reassurance that as Settlor you have the powers within the trust to ‘hire and fire’ trustees.

You retain complete control so there are no disadvantages, just advantages, providing the Trust is efficiently managed.