Trustee Powers:

Trustees, in the execution of their trusts have all the powers which are conferred upon them by the trust instrument; by statute; and by the court. There are powers in relation to the trust property and there are powers in relation to the beneficiaries. It may be highly useful to consult an Asset Protection and Trusts Lawyer for advice in the execution and performance of trustee duties.

The trustee may have the power of sale if provided expressly or impliedly by the trust instrument, under the authority of some statute, or under the order of the court. The primary duty of the trustee is to preserve the trust property in specie for the benefit of the beneficiaries. There may also be a power to lease, mortgage, repair and improve or insure the trust property. Also, a trustee may expressly be authorised by the terms of the trust to carry on a business. A trustee may carry on business only for the purpose of realisation of the property to ensure a higher sale price if permitted by the trust deed. The trustee may also have the power to compound debts as it is a trustee's duty to obtain payment of debts owing to the trust as quickly as possible and where they are not paid promptly to commence legal proceedings. An experienced Asset Protection and Trusts Lawyer may have regard to your circumstances and advise you of your powers as a trustee.

In the course of their administration of the trust, trustees have to give receipts. If receipts are given, all the trustees must join. Where money is paid by a debtor to only one of the trustees, the debtor may be made to pay again if the money is misapplied by that trustee. It is the duty of trustee-shareholders to use their voting power in the interests of the beneficiaries and, if all the beneficiaries are sui juris are absolutely entitled and agree upon the way in which the voting power should be exercised, the trustee usually will vote as the beneficiaries wish, although not obliged to do so. A trustee should not exercise voting power so as to benefit one class of beneficiary at the expense of another class- that is they should vote for the benefit of all beneficiaries as a whole and not to favour any specific class or individual. Comprehensive and sound legal advice regarding your powers as a trustee may be immensely valuable in this respect.

A trustee also has powers to obtain audits and valuations conferred on the trustee by statute. This means that the trustee may cause the accounts of the trust property to be examined or audited by a person who publicly carries on the business of an accountant, and shall for that purpose produce such vouchers and give such information to the person as the person shall require. A trustee of any property has the capacity to sue, and be sued by, himself or herself in any other capacity whatsoever, including the trustee's personal capacity; but in every such case the trustee shall obtain the directions of the Court in which the proceedings are taken as to the manner in which differing interests are to be represented. Obtaining sound legal advice from Asset Protection & Trusts Lawyer may ensure that you are fully aware of your powers as trustee.

It will be observed that a trustee does not need to seek the approval of the court for the doing of any of the foregoing acts. If, however, as a matter of precaution, the trustee desires the approval of the court, the trustee may in some jurisdictions make an application for judicial advice in that regard under the relevant Trustee Act.

If you need further legal advice on your trustee matter, you may book an appointment with us by telephone or by email to info@navado.com.au. 

This webpage (and any material or wording appearing on this webpage) is provided for general information purposes only and does not constitute any Legal Advice. It does not take into account your objectives, your instructions or all of the relevant facts and/or circumstances. Navado accepts no responsibility to any person who relies on the information provided on this website. We further refer you to our Disclaimer.