LawAnswers.com.au - Australia's #1 Legal Community

LawAnswers.com.au is a community of 10,000+ Australians, just like you, helping each other.
Ask a question, respond to a question and better understand the law today!
Join us, it only takes a minute:

QLD Who Can be an Independent Trustee for Will and Estates?

Discussion in 'Wills and Estate Planning Law Forum' started by cheryle, 29 September 2014.

  1. cheryle

    cheryle Well-Known Member

    Joined:
    30 July 2014
    Messages:
    40
    Likes Received:
    1
    Who can be appointed independent trustee for a will?
     
  2. Sarah J

    Sarah J Well-Known Member

    Joined:
    16 July 2014
    Messages:
    1,314
    Likes Received:
    243
    Are you asking about who can be appointed the personal representative (i.e. executor) or trustee for a particular asset of an estate or for a minor beneficiary or contingent beneficiary?

    If you are making a will, this can be anyone of age with mental capacity whom the testator appoints.
     
  3. cheryle

    cheryle Well-Known Member

    Joined:
    30 July 2014
    Messages:
    40
    Likes Received:
    1
    Yes
     
  4. Sarah J

    Sarah J Well-Known Member

    Joined:
    16 July 2014
    Messages:
    1,314
    Likes Received:
    243
    Usually, this is the executor of the will (or administrator in cases where the person dies intestate) unless:

    1. The will expressly appoints someone as trustee. The will can appoint a general trustee for all beneficiaries who are minors or has contingent interests under the will, or specific trustees for different persons/assets.
    2. The executor, who becomes the default trustee where (1 above) does not exist, can appoint his or her own trustee, unless the will expressly prohibits this.
    3. While the trustee is being located or appointed, the executor is the temporary trustee.
     
    cheryle likes this.
  5. Sarah J

    Sarah J Well-Known Member

    Joined:
    16 July 2014
    Messages:
    1,314
    Likes Received:
    243
    The appointed trustee must be of age to receipt property (i.e. over 18) and of mental capacity. A trustee can be anyone the will-maker feels comfortable trusting his or her property with (e.g. family, friends). A person can also appoint a public trustee or professional trust corporation or solicitor to act as the trustee for a fee. If this is the case, the will-maker will need to include a provision in the will that talks about the fee of the professional trustee/solicitor and where from the estate this fee will be taken out of.
     
  6. cheryle

    cheryle Well-Known Member

    Joined:
    30 July 2014
    Messages:
    40
    Likes Received:
    1
     
  7. cheryle

    cheryle Well-Known Member

    Joined:
    30 July 2014
    Messages:
    40
    Likes Received:
    1
    So this means I can or cant appoint soneone of my choice that is not a lawyer.

    ?
     
    #7 cheryle, 9 October 2014
    Last edited by a moderator: 11 October 2014
  8. Sarah J

    Sarah J Well-Known Member

    Joined:
    16 July 2014
    Messages:
    1,314
    Likes Received:
    243
    Yes you can appoint anyone over 18 years old of mental capacity who is able and willing to act.
     
    cheryle likes this.
  9. cheryle

    cheryle Well-Known Member

    Joined:
    30 July 2014
    Messages:
    40
    Likes Received:
    1
    Sorry think I should correct my question. If I am the beneficiary of a will thats my share Iis in trust for a period of time. Can I appoint an independant trustee? Can that trustee be anyone I choose over 18 with normal mental capacity? Also can I choose the banking instution for my funds in my name?
     
  10. Sarah J

    Sarah J Well-Known Member

    Joined:
    16 July 2014
    Messages:
    1,314
    Likes Received:
    243
    So just to clarify, you are the beneficiary of a will and the will maker has passed away, and you have not yet been vested with the property. Is this because you are a minor (under 18) or because there is some condition in the will that you need to satisfy beforehand?

    The will should name an executor. This executor will need to first obtain grant of probate. If the will did not also name a trustee to look after this trust, the executor decides who to appoint as a trustee. In the meantime, the executor is the trustee. The executor may decide to act as trustee personally, in which case they will need to appoint themselves as trustee.

    In practice, I would recommend you speak with the executor and nominate a trustee (over 18 and of mental capacity). However, it is your executor who has the ultimate right to appoint.
     

Share This Page

Loading...