When you are an executor or trustee, you have several vital tasks. From dealing with banks and share registries to coordinating with beneficiaries, you are the principal administrator of an estate. What’s more, a person’s Will might not specify an executor’s tasks or how they should handle particular issues. Not everyone is a wills and estate lawyer and knows how to proceed when faced with complicated succession or inheritance matters.
For instance, trustees might need guidance on dealing with a third party who has failed to repay a documented loan. They might also not know how to deal with beneficiaries who refuse to pay rent on a home owned by the deceased. A third scenario where they might need guidance is if they are in the middle of executing a complicated estate subdividing gifts among several beneficiaries.
In these situations, a trustee might not know their executory powers’ scope and fail to act. These and similar situations can put the trustee in a risky position, particularly when taking action means incurring costs for the estate.
How Should A Trustee Address Situations Like These?
Section 96 of the Trusts Act 1973 (QLD) states that trustees have the right to apply for directions. The law says:
“Any trustee may apply upon a written statement of facts to the court for directions concerning any property subject to a trust, or respecting the management or administration of that property, or respecting the exercise of any power of discretion vested in the trustee.”
In situations where trustees are unsure how they can carry out tasks for the estate’s welfare, they should make an application to the Court, seeking directions on how to proceed. Seeking help from a wills and estate lawyer will make this process easier.
Why Should A Trustee Make This Application?
In Section 97 of the Trusts Act 1973 (QLD), trustees get assurance that they shall receive protection while acting under the Court’s direction. The Act says:
“Any trustee acting under any direction of the court shall be deemed, so far as regards the trustee’s own responsibility, to have discharged the trustee’s duty as trustee in the subject matter of the direction, notwithstanding that the order giving the direction is subsequently invalidated, overruled, set aside or otherwise rendered of no effect, or varied.”
When a trustee seeks directions from the Court and acts under those directions, the Court will deem them to have carried out their duty. If there is an argument against the trustee, especially by a beneficiary, the Court will provide its protection. This protection extends to activities the trustee undertakes to carry out their obligations while fulfilling their role.
Can Trustees Apply For Directions On Their Own?
If you are a trustee and in a situation where you need an application to Court, you should seek legal advice. Applications for directions can be expensive; as such, you need to get it right in the soonest possible time. Also, the directions’ wording must be precise, and there should be ample supporting material for the application.
The wording is important because it should plausibly cover all situations that could arise. If a situation comes up after you seek directions, and the directions do not cover it, you would have to return to the Court for additional directions. Preparing comprehensive material avoids delays and additional costs.
Trustees have the job to satisfy the deceased’s Will and execute their wishes. Sometimes, this is a straightforward affair, but it could also be complicated. Seeking help from a lawyer will allow trustees to prepare for anything that could arise as they fulfil their roles.
Get expert legal advice and representation at Springfield Legals. We are wills and estate lawyers in Queensland specialising in family law, property and business conveyancing, succession planning, and income protection. Make an appointment today for more enquiries.