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Buachaill, Barrister
Category: Law
Satisfied Customers: 10972
Experience:  Barrister 17 years experience
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A couple of years ago a friend of mine died and in his will

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A couple of years ago a friend of mine died and in his will he appointed me as a trustee of his estate along with his nephew. Since then, his nephew has moved away and despite attempts to trace him, I cannot find him.
I am concerned, following a meeting with the financial adviser who has invested the money from the estate, that I cannot make the necessary decisions regarding the investments. He has warned me that I am not carrying out my trustee duties.
I cannot do anything regarding the estate without the ok of his nephew.
I therefore want to retire/resign from the position of trustee and would like advise as to how I go about this..
Ian Hood
1. The better approach here would be to make an application under the Trustee Act seeking the removal of the nephew as trustee and the appointment of someone else in his place. The court has powers under the Trustee Act to remove anyone as trustee and also to appoint anyone as trustee of a trust. In that way, you will have the necessary two trustees to implement decisions you take in relation to the trust. In this way, you can give effect to the wishes of your friend. Be aware that a full indemnity will be obtained from the assets of the trust for any legal fees or expenses associated with making an application under the Trustee Act to remove the nephew and appoint someone else.
2. If you are minded to resign, then you can always serve a notice on the trust of resignation. However, the least you should do is get someone else who is willing to act in your place and to effect the wishes expressed in the trust.
Customer: replied 2 years ago.
Many thanks for your answers, if I decided to resign, how would I go about serving a notice on the trust?
3. You simply serve the Notice of Resignation on the Executor of the estate. The executor can then make an application to court to appoint two new trustees to complete the trust.
Buachaill and other Law Specialists are ready to help you
Customer: replied 2 years ago.
Hi, Thanks for the additional guidance...just to clarify, both myself and the nephew are named as executors and trustees of the will, so who do I serve the notice of resignation on?. I have been dealing with the solicitors who processed the original will and they state that I cannot resign without 1. the knowledge of the nephew and 2.leaving only one trustee...
4. If you are both executor of the estate and trustee under the will, then the position is different. This is the first time you have mentioned that you are also executor. This complicates the position. You need to renounce your position as executor, as you have undertaken the duty of acting for the estate. Here, you should get someone else to act instead, if you want to renounce the executorship after taking out a Grant of Probate. I would again suggest that your best option is the first option I mentioned whereby you get someone else to act as trustee and executor of the estate and remove the nephew. However, you can still seek leave under the trustee Act to renounce your position as trustee. However, the court usually wants a trustee in this situation to propose someone else. This will doubly be so where you are also executor of the estate. You should, as part of this application seek to have a court appointed trustee and someone who will act as executor.
Customer: replied 2 years ago.
Ok, this is obviously getting more complicated, it seems that the logical thing to do is to try and trace the nephew. The solicitors who are dealing with this are asking for £600 to trace him - money that I simply do not have. It seems that I cannot access funds from the trust without the nephew also agreeing to this ! Is there any way that we can trace him without this sort of expense ? I have no issue to continue as a trustee, but I am conscious that I am not fulfilling my duties as a trustee if we cannot authorise a new fee structure with the investment company that are managing the trust in April next year. After this date, the management company will no longer be able to continue to manage the trust..
5. Your solicitor is being very unhelpful. You can authorise the estate to trace one of the trustees of the estate and get these monies paid by the estate. So, I don't see why your solicitor is opting out on you?? There is no need for you to pay up out of your own pocket at all. Does the solicitor have some sort of vested interest in ensuring the nephew is not found?? Additionally, the solicitor knows he will get paid by the trust ultimately. So I don't see what is his problem.... Consider gettinga different solicitor if this one is so difficult.