What is a trust?

A trust is an obligation binding a person (called the trustee) in whom legal ownership of property (called the trust property) is vested, to deal with that property for the benefit of persons (called the beneficiaries).
A trust can be inter vivos, that is, created during the lifetime of the settlor. If a trust takes effect on a death, it is a Will Trust. It is common for trustees to hold property on trust for minor children until they reach the age of majority (eighteen).

Who can be a trustee?

Anyone can be appointed to act as trustee, with exception of those under a handicap. It is usual to appoint two trustees and they can be appointed by way of a Trust Deed, by the beneficiaries or by a Will. In a Will, the executors and trustees will usually be the same persons.  Where trustees hold trust property, they hold that property as Joint Tenants.

Does a trustee have to act?
A trustee does not have to act and he/she can refuse (disclaim) the office at the very outset, however once a trustee has accepted the office, he/she cannot then disclaim it. The reverse is also true; once a person disclaims the office, he/she cannot change their mind. It is important to note that a trustee can also be removed from office. The beneficiaries may agree to remove the trustee or statute may dictate removal.

What are the legal requirements for a valid trust?

There are three legal requirements for a valid trust, often called the ‘three certainties’:

1. The subject matter must be certain
2. The persons must be certain
3. The words relied on as creating the trust must be used in an imperative manner to show that the Testator or settlor (the person creating the trust) intends to create the trust.

What duties does a trustee have?

A trustee has many duties including, but not limited to, the following:

• The duty to collect and preserve the trust property/fund.
• The duty to invest the capital of the trust and ensure it produces necessary flow of income.
• The duty not to profit from the trust.
• The duty to keep impeccable records and accounts.

What powers does a trustee have?

A trustee is granted both statutory and non-statutory powers. Statutory powers derive from the various Acts associated with trusts including the Settled Land Acts 1882-90, Trustee Acts 1893-1931, the Succession Act 1965.
In order for a trustee to fully and effectively exercise their duties, it is necessary to extend their powers by granting them non-statutory powers. Examples of non-statutory powers include:

• The power to insure the property
• The power to pay professional fees for services rendered
• The power to borrow and lend money
• The power to run a business.

For further information please contact:

Hugh Joyce (Solicitor)
t: 068 50918
Send Email

Mary Walsh (Solicitor)
t: 068 50928
Send Email