Frequently Asked Questions
Q: How are trustees appointed?
The main ways in which a trustee can be appointed are through the express terms of a trust instrument, statute or by court appointment.
Trust instrument: trustees appointed by trust can be referred to as ‘original trustees’, and it’s not uncommon for the trust instrument to have provisions detailing when and how a trustee can be appointed.
Statutory power: in the absence of an express power of appointment in a trust instrument, statute allows for a trustee to be appointed, the circumstances in which the appointment can be made, along with the class of persons who can be appointed.
Court appointment: statute grants the courts power to appoint, remove or replace trustees if satisfied that such an action is in the best interests of the beneficiary, or necessary to advance the purposes of the trust. Courts will take into consideration the welfare of the beneficiary when making an appointment, and look into whether the trust property is safe. Finally, the trust property is to be executed in a way that will best serve the interests of beneficiaries.
Remember, a trust will not fail for want of a trustee.