The basic principles to follow when acting as a trustee.
First published in December 2007. Updated November 2015.
This guidance applies to members, provisional members, affiliates and member firms and illustrates the basic principles that members are expected to follow when acting as a trustee1, whether or not on a remunerated basis. It does not provide practical guidance on how to run a trust, deal with beneficiaries or manage the assets of a trust. For guidance on these and similar issues to do with the day to day running of a trust, members are advised to refer to the guidance available from other sources such as Gov.uk. See also Appendix A for other sources of guidance and information.
It should also be read in conjunction with any other specialist guidance that may be available.
This is not a statement of trust law but deals with ethical obligations and guidance for appropriate trustee behaviour generally. Some of the principles and content of this guidance may be of relevance to other fiduciary roles, such as executors, attorneys and receivers, where a member acts in a position of trust.
The rules which are applicable to trustees of pension funds, charitable trusts, charitable companies or collective investment schemes are not covered. Trustee positions held by a licensed insolvency practitioner in that capacity are also beyond the scope of this guidance. Members who are invited to act as a trustee in such circumstances may obtain relevant information from The Pensions Regulator, the Charity Commission, and the Financial Conduct Authority (FCA), or from relevant professional or trade bodies2. In the case of charities, members are recommended to refer to ICAEW’s separate guidance to charity trustees (available here) and also to take account of guidance from the relevant charity regulator – for charities in England and Wales this is the Charity Commission.
This guidance does not deal with the monitoring requirements for trust services providers, introduced by the EU's 3rd and (forthcoming) 4th Money Laundering directives (further details available here). Members are also referred to the Money Laundering Regulations 2007 and the Anti-money Laundering Guidance for the Accountancy Sector issued by the CCAB member bodies for further information.
This guidance is written from the perspective of members acting as trustees for trusts pursuant to the law of England and Wales but it is recommended that the principles laid out in this guidance are observed by members acting as trustees or in equivalent roles or subject to other law, unless to do so is contrary to such local law or regulations.
Whilst every care has been taken in the preparation of this guidance, ICAEW does not accept any responsibility for any loss occasioned by reliance on it. If in doubt members should seek independent legal or other professional advice.
1. Introduction: what is a trust?
||A trust involves the separation of legal and beneficial interests in property. In a trust situation the legal ownership vests in one or more persons or entities (the trustee(s)) for the benefit of ('in trust for') another or others (the beneficiaries). The trustee has a legal obligation to carry out the duties conferred upon himby the trust. The relationship between the trustee and the beneficiaries is a 'fiduciary' relationship, such that the trustee must always place the interests of the beneficiaries above his own.
||Trusts can arise in a range of circumstances without any documentation but normally there is a formal trust document3 appointing the trustees and setting out the nature of the trust and its beneficiaries, the property subject to the trust and the trustees' powers and responsibilities.
||Trusts are highly diverse and can be constituted for a wide number of purposes which can extend from, for example, private or family issues, and Court of Protection matters, to investments, pensions and charities. The theme common to all trusts is that the trustee acts in a fiduciary capacity, acting in the best interests of the beneficiaries, in whose sole interests and for whose exclusive benefit the trustee must act. It is an onerous responsibility, not to be taken on lightly.
||Duties of a trustee in respect of areas such as confidentiality and acting in best interests of beneficiaries have a synergy with membership of the profession and therefore members are often ideally suited to appointment in these roles.
2. Fundamental principle - professional competence and due care
||Members are reminded of the fundamental principle of professional competence and due care 4. A continuing duty exists to maintain professional knowledge and skill at the level required to ensure that a client or employer receives competent professional service based on current developments in practice, legislation and techniques. There is also a duty to act diligently and in accordance with applicable technical and professional standards when providing professional services.
Before accepting appointment as a trustee, members should :
- seek legal advice to ensure they understand the terms of the trust deed;
- ensure they understand the relationship between the settlor and beneficiaries and the existing trustees;
- carry out appropriate due diligence and record their assessment of any risks identified. These might include ascertaining, for example, that the trust has been validly formed or whether there is any ongoing or threatened litigation, whether the tax affairs of the trust up to date or whether any of the trust’s assets bring particular risks; and
- satisfy themselves that they have sufficient knowledge of the taxation regime applying to trusts in general and to the proposed appointment in particular.
||On being appointed, a trustee needs to:
- satisfy himself as to the identity and nature of the trust assets and ensure that they are safe and under his control;
- satisfy himself as to the terms of the trust and the extent of the beneficial class. If a trustee has any doubts as to the provisions of the trust, it is recommended that appropriate legal or other professional advice is taken; and
- review the accounting and other records of the trust to ensure that its affairs are in order and that no breaches of trust have been committed in the past which need to be remedied, and take appropriate legal or other professional advice as necessary.
||All trustees need to familiarise themselves with their responsibilities with regard to mistakes, particularly in the light of the 2013 judgement passed down in Futter and Pitt.UKSC26.
Drafting trust documents
||The drafting of trust documents is an activity reserved to particular persons. Information regarding such activities or legal services generally is covered in Accountants and legal services 6.
||A member in practice holding the position of trustee needs to consider whether the trust holds any investments in the assurance5 clients of his firm. Further information on independence is set out in the FRC Ethical Standards (for auditors), in particular Ethical Standards 2 (Financial, business, employment and personal relationships) and 5 (Non audit services provided to audit clients) or Section 290 of the Code of Ethics8.
4. Appointment and retirement as a trustee
The Trustee Acts legislation6 contains rules covering both the appointment and retirement of trustees. There may also be express provisions in the trust document. Those acting in other areas, for example charitable trusts, will note that specific restrictions may apply. Appointment of trustees to an existing trust is not covered by this guidance and members with any questions about their potential/proposed appointment as a trustee are recommended to seek appropriate legal or other professional advice.
Members should also be aware that any outgoing trustees will usually expect to be indemnified by any new incoming trustees and should seek appropriate legal advice.
||The trust document may contain express conditions setting out when a trustee may retire which may or may not be linked to the appointment of a successor. The trust document may prescribe the number of trustees required, the steps to be taken on retirement of a trustee and for actions on retirement; generally it is not a simple matter of just resigning the position. Members are recommended to take appropriate legal advice on how to retire to ensure a valid discharge of their trusteeship. In particular a member who considers retirement in favour of an overseas trustee needs to be aware that this is an area which warrants appropriate legal or other professional advice from a specialist.
Trustee's lien and indemnity
||Trustees are entitled to be indemnified, out of the trust assets, against liabilities which they incur or take on as trustees. In this context the law does not require trustees to disregard their own interests but trustees must act fairly as between beneficiaries and their own interests.
||There may be circumstances in which it may be appropriate to exercise a lien over the assets of a trust7. This may particularly be the case on retirement or on conclusion of the trust. A member seeking to exercise a lien as trustee may find it useful to consider the general principles of Documents and records: ownership, lien and rights of access. If a member is entitled to incur expenses, to charge fees for work undertaken or has other justifiable grounds, a lien may be exercised8.
||Members are reminded that the ICAEW's view of the ethical purpose of a lien exercised in respect of fees is to prompt payment and not to exact payment where there is a genuine dispute9.
Grounds for removal
||Grounds for replacement of a trustee may arise under statutory provisions10. The trust document may set out grounds for the removal of trustees. In some circumstances retirement may be requested or ordered. In addition a member's ethical obligations will dictate that there are circumstances in which a need for retirement will arise. Examples of such circumstances may be where a member:
- is convicted of any offence which triggers the duty to report misconduct11 or which would otherwise compromise the integrity of that member in the role; or
- is declared bankrupt12; or
- has made formal arrangements with his creditors13.
||As well as removal under statutory grounds, a beneficiary may apply to the court where the relationship has broken down irretrievably.
5. Capacity in which trusteeship held
Trusteeships may be undertaken without remuneration or as a 'professional trustee' for reward, subject to the appropriate provisions in the trust document. Members are reminded that a duty of care exists even if the role is undertaken for no reward and that undertaking a role professionally may increase the standard of care expected14. If a member is uncertain of his duties with regard to any particular function as a trustee, it is recommended that appropriate legal or other professional advice is obtained.
Members are also reminded that one can be a trustee even if not specified as such on the trust deed. Further advice is available here.
||There is no specific requirement to hold a practising certificate (PC) solely to become a trustee (although a PC may be required for other roles the member may undertake).
||Section 1(1), Trustee Act 2000 provides that the trustee: '...must exercise such care and skill as is reasonable in the circumstances, having regard in particular:
- to any special knowledge or experience that he has or holds himself out as having, and
- if he acts as trustee in the course of a business or profession, to any special knowledge or experience that it is reasonable to expect of a person acting in the course of that kind of business or profession.'
||Since this Act has given particular emphasis to the level of skill and care which a professional person is expected to show in his performance of the services, it is possible that this higher standard will be applied not just to those acting in the course of a business or profession, but also to members acting as a trustee in a private capacity.
||Members who act as directors of corporate trustees need to apply the same rules and standards of care.
6. The roles and responsibilities of trustees
||In addition to the express obligations of a trustee, as stated in legislation and the trust instrument, the principal fiduciary duties are:
- to act in good faith;
- not to make a profit out of his trust 15;
- not to place himself in a position where his duty and his interest may conflict;
- not to act for his own benefit or the benefit of a third person unless properly authorised to do so;
- to be accountable to the beneficiaries or co-trustees;
- not to misuse confidential information 16.
Duty to invest
||Members must have due regard both to the law and to the content of the trust document in respect of investments. In general trustees must act prudently in preserving the capital of the trust and in balancing the interests of different beneficiaries. Without specific investment powers, a trustee can invest in the same range of investments '[as] if he were absolutely entitled to the assets of the fund' 17. A trustee must from time to time review the investments of the trust and consider whether, having regard to the standard investment criteria, they need to be varied 18.
||In this respect, the standard investment criteria19 are:
- the suitability to the trust of the investments (both in relation to the suitability of the kind of investment, and the suitability of the particular investment); and
- the need for diversification of investments of the trust, in so far as is appropriate to the circumstances of the trust.
||Under the Trustee Act 2000 a trustee has a duty to seek 'proper'20 advice unless he concludes that in all the circumstances it is unnecessary to do so 21.
||Persons (including trustees) providing investment advice to the trust by way of business will also require authorisation by the Financial Services Authority or under the Designated Professional Body arrangements 22. Trustees (including members who are trustees) may seek investment advice from an entity or individual authorised or licensed (which can include the member's own firm) without requiring authorisation or a licence themselves. There are limited circumstances in which the provision of advice as a trustee would not be caught by the Financial Services and Markets Act 23. Advice not given by way of business is unlikely to require a licence or authorisation but members need to be very careful about using this exemption and are recommended to obtain appropriate legal or other professional advice. Where trusts are not subject to the law of England and Wales members are reminded that similar provisions are likely to apply.
Duty to maintain and prepare accounts
||Trustees have a fundamental duty to maintain and prepare accounts and to attend to compliance obligations such as completion of tax returns. Members are reminded that they have a particular responsibility, in view of their professional expertise, to ensure such accounts or other relevant returns are completed and/or maintained to appropriate standards.
7. General powers of a trustee
||Trustees derive their powers from the trust document and, in the absence of express provision in the trust document, from statute and common law. Some of these powers are discussed below, in the context of the duties and other functions of trustees. Delegation by the trustee must be within the terms of relevant powers (statutory or as set out in the trust document).
||Sections 11-15, Trustee Act 2000 empower trustees to delegate certain of their functions. Some of these powers apply to their collective ability to delegate and not to delegation by any individual trustee and only operate in the absence of express provision in the trust document.
||Under the Trustee Act 2000, functions which cannot be delegated (unless expressly provided for in the trust document) are set out in s.11(2) as follows:
- any function relating to whether or in what way any assets of the trust should be distributed,
- any power to decide whether any fees or other payment due to be made out of the trust funds should be made out of income or capital,
- any power to appoint a person to be a trustee of the trust, or
- any power conferred by any other enactment or the trust instrument which permits the trustees to delegate any of their functions or to appoint a person to act as a nominee or custodian (sub-delegation).
||Delegation by an individual trustee by power of attorney is covered by s.25, Trustee Act 1925, as amended by the Trustee Delegation Act 1999.
||Any delegation of trustee functions (other than in respect of land in which the donor has a beneficial interest) must comply with the provisions of s.25, Trustee Act 1925, which contains safeguards to protect the beneficiaries. These safeguards provide that a trustee:
- may, by a power of attorney, delegate his or her functions as trustee for a period of 12 months or any shorter period;
- must, either before or within seven days after giving the power of attorney, give notice to the co-trustee(s) and any person entitled to appoint a new trustee; and
- is liable for the acts/defaults of the attorney.
||Section 1(1), Trustee Delegation Act 1999 provides an exception to this obligation to comply with s.25, Trustee Act 1925 and states that an attorney can exercise a trustee function of the donor if it relates to land, or the capital proceeds or income from land, in which the donor has a beneficial interest 24.
||Section 7, Trustee Delegation Act 1999 contains the following 'two-trustee' rules:
- capital monies arising from land must be paid to at least two trustees;
- a valid receipt for such capital monies must be given otherwise than by a sole trustee;
- a conveyance or deed must be made by at least two trustees to overreach any powers or interests affecting a legal estate in land.
||Members are reminded that it is good practice to make appropriate provisions (including the granting of a power of attorney covering trustee functions) to facilitate the administration of the trust or to respond to emergency situations during short periods of absence.
Power to insure
||Sections 19 and 20, Trustee Act 1925, as amended by s.34, Trustee Act 2000, or their general powers under the Trustee Act 2000 allow a trustee to insure against all risks and obtain insurance cover for all property which is subject to the trust, whether land or chattels. The premium may be taken from either capital or income. The statutory duty of care applies to the trustee's choice of insurer and the terms of the insurance. These powers do not impose a duty on the trustee to insure but it is likely that a failure to insure in circumstances where a reasonable person would have insured trust property will constitute a breach of the trustee's paramount duty to act in the best interests of the present and future beneficiaries of the trust.
8. Conflicts of interest
||Section 220 and Section 310 of the Code of Ethics 25 set out the ethical position in relation to conflicts of interest. Members requiring more detailed guidance on conflicts of interest generally are referred to the Code of Ethics and Ethics Advisory Services 26.
||Members may not retain commission27 arising from activities undertaken in the capacity of a trustee, unless expressly permitted by the trust document, or where appropriate, with the agreement of all the beneficiaries or with the agreement of co-trustees 28, as part of their remuneration as a trustee.
Dealing in trust property
||The dealing in trust property by the trustee in a personal or other trustee capacity (unless specifically permitted by the trust document) will be voidable and prevent the trustee from acquiring good title. If there are good trust reasons for such a transaction a member will need to seek the direction of the court unless self dealing is authorised by the trust document.
9. Trustee liability
||Members need to be aware that where they take on the role of a trustee, they are taking on personal responsibilities. Accordingly, if they act outside their powers or do not fulfil their duties, they may be held liable for breach of trust and will have to make good personally the loss thereby incurred by the trust. Some implications arising from personal liability are set out below.
Trustee's ability to limit liability
||Some trust documents contain clauses which seek to limit or exclude the trustee's liability for loss arising from breach of trust 29. These are generically known as 'trustee exemption clauses' 30.
||All members are obliged to adhere to the fundamental principles set out in the Code of Ethics. Of particular relevance is the fundamental principle of integrity. In this context integrity requires compliance with the terms of para 9.4 below.
Informing clients of the existence and impact of trustee exemption clauses
||A member acting as or for an original trustee, who
- assists in drafting,
- instructs another to draft,
- provides or prepares, or who
- arranges the provision or preparation of
a trust document or a testamentary document (including a standard form trust), which includes any clause which has the effect of limiting or excluding liability31, has this duty32:
to take reasonable steps before the creation of the trust to ensure that the settlor has given full and informed consent to the inclusion of any such clause.
||It may be appropriate to suggest that the settlor seeks independent legal advice.
||It is recommended that members retain a written record of any steps taken under these paragraphs.
||Similar steps may be appropriate where the duties normally incumbent upon a trustee are specifically or unusually modified by the trust document or the testamentary document, particularly where the effect of the modification is to limit or exclude liability.
Entering into contracts as a trustee
||Members are reminded that trustees of an unincorporated trust, contract in their personal capacity and will be personally liable but will be entitled to an indemnity, from and to the extent of the trust fund (subject to the limitations in the contract), provided the contractual obligations are authorised by the trust document or by the law.
Managing personal liability - considerations for members
||Members in practice33 who take on a trusteeship, are advised to establish whether their firm's professional indemnity insurance provides cover for such activities (see also paragraph 7.9 above). The absence of cover may be a breach of the Professional Indemnity Insurance Regulations and/or exposure to personal liability in the case of a claim against the trustees.
||Members who take on a trusteeship whilst in practice and who continue with the role after ceasing to be in practice (for example, on retirement) need to consider whether:
- they hold (through their previous firm) indemnity insurance that provides cover for such activities;
- they hold separately sufficient indemnity insurance to protect against a claim which could exhaust personal resources.
||Members should also consider whether their co-trustees carry adequate indemnity insurance. A successful claim made against the trustees could result in a liability for costs and damages for which all trustees are jointly and severally liable. Satisfaction of the liability could fall disproportionately on those trustees with insurance in place or significant personal resources.
||Members are reminded that personal bankruptcy (which could arise from a claim that exhausted the member's personal resources) will result in automatic termination of membership.
||Members who are not in practice or who act in a capacity entirely separate to their practice may also wish to consider insuring against personal liability. Insurance products exist which are specifically designed to deal with liability arising from acting as a trustee.
10. Trustees and Powers of Attorney (POA)
||A POA34 creates a fiduciary relationship between the donor and donee of the POA. As such, the guidance set out above needs to be given due consideration. Before considering whether to accept a POA in respect of a client or colleague, members need to consider the consistency of such a role with existing services provided to the client (see paras 2, 3 and 8 of this guidance).
||Where a member finds that he is regularly or permanently unable to perform his trustee functions it would be prudent to consider retiring as a trustee rather than appointing an attorney.
||As set out in para 6.1 above, trustees have a general duty not to profit from being a trustee. However, members may charge for their services in a number of circumstances:
- where there is an express charging clause in the trust instrument; or
- in certain circumstances with the written agreement of the other trustees 35; or
- where appropriate, with the prior agreement of all the beneficiaries.
||Charging clauses are construed strictly and may prohibit the trustee from being remunerated for acts which a lay trustee could perform. Where a member witnesses a testamentary document in which a charging clause is contained he will lose the benefit of the charging clause.
||Members' attention is drawn to the principles set out in paras 9.4-9.7 and are asked to note that these can apply equally to charging clauses 36.
Trustees' written agreement
||A trustee who acts in a professional capacity, but who is not a trust corporation, a trustee of a charitable trust or a sole trustee, is also entitled to receive reasonable remuneration out of the trust funds for any services that he provides to or on behalf of the trust, if each of the other trustees has agreed in writing that he may be remunerated for the services. A sole trustee is excluded because the safeguard of collective scrutiny would be absent 37.
Agreement of the beneficiaries
||In the absence of a charging clause or written agreement, prior agreement of all the beneficiaries will permit the trustees to charge.
||Whilst there is no legal obligation to do so, members wishing to rely on a charging clause to recover professional fees may wish to agree the basis for charging with the beneficiaries. This can help avoid disputes over fees at a later date and can assist in demonstrating adherence to ethical standards, particularly integrity.
||There is no legal obligation to provide fee breakdown information to beneficiaries, for fees recovered under a charging clause. However, members are reminded of the fundamental principles, in particular professional care and due diligence and integrity. Further, members are referred to Section 240, Code of Ethics B.
||A trustee can recover reasonable out-of-pocket expenses 38. Where expenses are properly incurred a member may be entitled to exercise a lien39 over the trust property.
||Trustees who instigate, defend or participate in litigation need to consider seeking protection, under what is known as the Re Beddoe40 procedure, against personal liability arising from adverse cost orders. However, this is a complicated area and members are strongly recommended to seek legal advice.
Appendix A - Useful resources
Society of Trust and Estate Practitioners (STEP)
HMRC for Anti Money Laundering compliance guidance where relevant
- Trustee Act 1925
- Trusts of Land, Appointment of Trustees Act 1996
- Trustee Delegation Act 1999
- Trustee Act 2000
- Variation of Trusts Act 1958
ICAEW Code of Ethics
Law Commission's report (LAW COM 301) into Trustee Exemption Clauses
Trustee toolkit (tPR)
The Association of Business Recovery Professionals (R3)
Insolvency Practitioners Association (IPA)
||A director of a trust company will have similar considerations.
||See Appendix A - Useful Resources.
||This is sometimes called the 'trust deed' or the 'governing instrument'. The generic term 'trust document' is used in this Section.
||Assurance refers to engagements in which a practitioner expresses a conclusion designed to enhance the degree of confidence of the intended users. The conclusion is based on the evaluation or measurement of the subject matter against criteria. An audit is a type of assurance engagement where the subject matter is information within the financial statements for which, specifically, the APB Ethical Standards apply.
|| this Section, the 'Trustee Acts' denotes the Trustee Act 1925, the Variation of Trusts Act 1958, the Trusts of Land and Appointment of Trustees Act 1996, the Trustee Delegation Act 1999, and the Trustee Act 2000. There is other legislation affecting trustees.
||See for example X v A 1 All ER 490.
||See s.36, Trustee Act 1925.
||Membership will automatically cease under the ICAEW Bye-Laws upon the successful petition for bankruptcy of a member.
||Entering into an IVA or similar arrangement with creditors will give rise to a disciplinary offence under the Bye-Laws but will not automatically cease membership of the Institute. Members who are subject to such arrangements and who have not notified the Institute are reminded of their obligation under para 6(viii), The duty to report misconduct.
||Trustee Act 2000, ss.1 & 2 and common law decisions including Speight v Gaunt  (9 App Cas 1,19) and Bartlett v Barclays Bank  Ch 515.
||See Part V, Trustee Act 2000 and para 11 of this Section.
||Section 3(1), Trustee Act 2000.
||Section 4(2), Trustee Act 2000.
||Section 4(3), Trustee Act 2000.
||Section 5(4), Trustee Act 2000 states: 'Proper advice is the advice of a person who is reasonably believed by the trustee to be qualified to give it by his ability in and practical experience of financial and other matters relating to the proposed investment'.
||Section 5(3), Trustee Act 2000.
For further information please see the ICAEW DPB Handbook or visit the Financial Conduct Authority's website.
||See art. 66(3)-(6), Regulated Activities Order (SI 2001/544) as amended.
||Section 3(3), Enduring Powers of Attorney Act 1985 provided that an attorney under an enduring power was able to exercise all or any of the trust's powers or discretions vested in the donor as trustee. There were a number of problems with this section, however, including that it provided none of the safeguards for beneficiaries that are required under s.25, Trustee Act 1925. The delegation also remained in force after the donor of the power had become mentally incapacitated.
||Ethics Advisory Services can be contacted on 01908 248258.
||See also the general obligations regarding commission retention covered in 'Code of Ethics B', sections 240.5-240.8.
||Section 29, Trustee Act 2000.
||Breach of trust arises when a trustee fails to carry out his duties or exceeds the powers conferred upon him.
||The term is used interchangeably with 'trustee exoneration clause' and 'trustee exculpation clause'.
||See para 2.3 (of this Section) regarding legal restrictions on drafting.
||For information members' attention is drawn to the Law Commission's report into trustee exemption clauses (including the rule of practice adopted by the Society of Trust and Estate Practitioners) and the Law Commission's recommended 'Rule', which is available at http://www.justice.gov.uk/lawcommission/index.htm. The content of this Section represents the ICAEW's incorporation of the 'Rule' into member guidance and reflects the ethical obligation for a member to ensure those with whom he deals are not misled.
||Members are reminded that the law regarding enduring powers of attorney changed on 1 October 2007 (now known as 'lasting powers of attorney'). Notably lasting powers of attorney need to be registered from the outset unlike enduring powers of attorney which were only required to be registered upon the incapacity of the donor.
||Section 29(2), Trustee Act 2000.
||Section 29(2), Trustee Act 2000.
||See s.31 (Trustees' expenses) and s.11 (Power to employ agents), Trustee Act 2000.
||Re Beddoe  1 Ch 547.