Appointing a trust corporation to administer an estate and deal with probate

Meg Edwards, Solicitor, and Roman Kubiak, Partner and head of the Contested Wills, Trusts and Estates team discuss the benefits of appointing a trust corporation to administer an estate and deal with probate.

Administering an estate and dealing with probate can be an onerous task, especially so if the estate comprises a mix of assets such as properties, shareholdings, investments and offshore funds or property.

As such, when writing a will many people choose to appoint a trust corporation to deal with the administration of their estates. Likewise, personal representatives (the catch all term for executors and administrators) may choose to instruct a trust corporation to assist them with collecting in the assets, settling the debts, dealing with HM Revenue & Customs and tax and, ultimately, distributing the estate.

What is a trust corporation?

Unlike many personal representatives, a trust corporation is a separate legal entity which can act as an executor, administrator, trustee, Court of Protection deputy or an attorney.

Section 115 Senior Courts Act 1981 and rule 36(4) Non-Contentious Probate Rules 1987 provide that a trust corporation may take out a grant of representation in a deceased’s estate, meaning that they may deal with the estate administration. As such, trust corporations enjoy an unique status as distinct from other companies who, by contrast, cannot be nominated in such a capacity and must instead appoint a nominated person to take the grant out on their behalf.

The benefits of appointing a trust corporation

There are many benefits of appointing a trust corporation to administer an estate including:

1. Expertise: many trust corporations, such as Hugh James Trust Corporation, are professional bodies comprising experts across the field of estate and trust administration. They can therefore advise on issues such as inheritance tax, conveyancing, contentious issues and corporate matters which may affect the estate.
2. Continuity: if a testator names a trust corporation as executor of their will, it will provide them with peace of mind that they are not burdening their family or friends with this responsibility. Trust corporations likewise can’t die or become incapacitated or retire in the same way that an individual might.
3. Impartiality: trust corporations are impartial. When a person passes away, emotions are often heightened and the reality of having to deal with their affairs can sometimes lead to disputes between beneficiaries or those who believe they should be entitled from the estate. This can cause further contention when specific family members or loved ones are appointed executors. However, appointing a trust corporation to act is a means of ensuring that an estate is dealt with fairly, in line with the deceased’s wishes (if there is a will) and ensuring that all decisions are made in the best interests of the estate and its beneficiaries.

How to appoint a trust corporation

A testator (the person making a will) may appoint a trust corporation to act as their executor. The trust corporation will then have a duty to administer the testator’s estate when they pass away.

Alternatively, where a person has been appointed executor in a will or, where a person is entitled to act as personal representative of an intestate estate (where no will has been left) under the Intestacy Rules, they may “renounce”. Renouncing means that they will permanently step down from their duty and will not be entitled to act at any point in the future. If they do not want to administer an estate, personal representative(s) should renounce as soon as possible and should not deal with any estate administration matters before doing so to avoid any complications or accusations of ‘intermeddling’ in the estate.

Renouncing is a straightforward process and simply requires the personal representative(s) to execute a “deed of renunciation”. In that same deed, (provided that all residuary beneficiaries of the estate are in agreement), as well as renouncing, the personal representative(s) may consent to a trust corporation acting in their place.

This can also be done by appointing a trust corporation under a power of attorney. Consent is not required from residuary beneficiaries of an estate in this instance. However, the trust corporation will need to bear in mind that the executors may opt to step back into their role at any time. Further, should an executor die or become incapacitated, this renders the power of attorney void, meaning that the trust corporation has no ongoing authority to act.

Hugh James Trust Corporation Limited (“HJTC”)

HJTC is a trust corporation owned by the partners of Hugh James. Where HJTC is appointed to act, it instructs Hugh James to carry out all work on its behalf meaning that our specialist teams of lawyers and support staff will take conduct of the estate administration process. Senior partners of Hugh James are authorised to make decisions and sign documents on behalf of HJTC, meaning that conveniently, no input is required from family members or renounced executors and personal representatives.

HJTC may also act as trustee of trusts, attorney or deputy for individuals (although it should be noted that a trust corporation may only act as deputy or attorney for property and financial affairs and not for personal welfare matters).