What to Do When a Corporate Trustee or Executor does a Disappearing Act
(or: How to Deal with an Estate or Trust when the Executor or Trustee is a Trust Corporation which has gone into Liquidation.)
Whilst this article focuses on the situation where the named/appointed executor or trustee is a trust corporation, the same general position applies if they are merely a corporate trustee.
In recent years, we have seen a number of trust corporations “disappear”, or cease to provide the expected services. This can occur due to a number of reasons, one of which might simply be that it has changed its name. There is no central directory or database of trust corporations.
Many major financial institutions, such as banks, have ceased to provide executor or trustee services. They have:
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- outsourced the appointment to a third party (usually a law firm);
- retired as trustee in favour of another trust corporation; or
- sold off their trust corporation (which is effectively the executor and trustee service provider).
An example of the last is Barclays PLC, which sold its global trust business to Zedra. The UK executor and trustee business, which used to be called Barclays Bank Trust Company Limited, is now called Zedra Trust Company (UK) Limited.
If the executor or trustee is a trust corporation associated with a major financial institution, and you have not had contact with the trust corporation for a while, don’t assume that it has ceased trading if staff at the local branch of the institution know nothing of it – you cannot expect them to know every service offered! However, you might ask for contact details for the institution’s Legal Team, who should be able to deal with such an enquiry. Alternatively, as most of the major trust corporations, and many of the smaller ones, are members of TACT – The Association of Corporate Trustees (Home | TACT – The Association of Corporate Trustees (tactweb.org)), they may be able to assist in identifying what has happened to a “missing” executor or trustee.
It should not be overlooked that if you have a corporate executor or trustee named, but cannot immediately identify them, a Companies House search via its website (Find and update company information – GOV.UK (company-information.service.gov.uk)) might help provide the answer you need.
Sometimes, though, the answer from Companies’ House is the one you don’t want – the trust corporation is in liquidation or has been dissolved.
What do you do then?
The answer depends on whether the trust corporation is acting as trustee or executor and, if named as executor, whether the testator is alive and capable of making a new Will.
N.B. Whilst I refer to liquidation and liquidators, below, if the trust corporation is in receivership, or administration, for “liquidator” read “receiver” or “administrator”, as appropriate.
Trust corporation as trustee
Where the trust corporation exists, but is in liquidation, it is important to contact the liquidators as soon as possible so that they can identify the assets belonging to the trust and ensure that they are not used to pay off creditors. Once a company is in liquidation, the (former) directors have no authority and it will be for the liquidators to either retire the company as trustee, if this leaves at least 2 trustees in place, or (if the trust instrument does not specify an “appointor”) to appoint new trustees and retire the (defunct) trust corporation. The liquidator would also be responsible for arranging for the trust assets to be transferred into the name(s) of, or under the control of, the continuing and/or new trustees.
If the liquidators decline to assist, or the company has already been struck off the Companies’ House register, it will be necessary to apply to court for the appointment of new trustees. Once appointed, the new trustees will need to contact the liquidator to establish what has happened to the trust assets.
It should be recognised that once a company has been struck off, its records might not be easily available, or documents for which the company was responsible retained indefinitely. An example of this is the business which operated under the name Universal Wealth Preservation (UW) which was recently closed down. The whereabouts of many of the documents supposedly held by it in secure storage is unknown, as are the whereabouts of assets belonging to many of the trusts the business administered. Suffolk Police may have the UW files and documents as they led the investigations into UW. The contact email address for their team is firstname.lastname@example.org. The email address is named after the title of the investigations into UW, which was called “operation ardent”
Trust corporation as executor
If the testator is alive and with testamentary capacity, at the very least they might consider making a codicil appointing a new executor (and trustee?). If the original Will cannot be readily located, the testator should make a new Will, in case the original “existing” Will never comes to light.
If the testator, whilst alive, does not have capacity to make a new Will or codicil (as appropriate), an application to the Court of Protection for a statutory will may need to be considered.
Provided that the original Will (and any codicils) is recovered, in some cases it might be considered sufficient to do nothing until the testator dies. At that time the beneficiaries may either arrange for the liquidator to renounce the right to a grant or, if the trust corporation has been struck off the Companies’ House register, apply for a grant of letters of administration with Will annexed on the basis that the named executor has ceased to exist. In both cases the order of priority set out in the Non-Contentious Probate Rule 1987, Rule 20 will apply to identify who is entitled to apply for the grant.
If the trust corporation is already acting in the estate, and has obtained a grant, the liquidator should surrender the grant to the Probate Court. The beneficiaries, or their attorney, should then apply for the issue of a grant of letters of administration de bonis non administratis to enable the administration of the estate to be completed. The new grant holders will need to liaise with the liquidators to identify what, if any, assets of the estate are held by the trust corporation.
This article seeks to highlight some of the issues that arise when a trust corporation either disappears or goes into liquidation and so is unable to fulfil its duties and obligations.
In many cases, this will give rise to considerable concern, which can be alleviated by a few quick checks. In those situations where a quick resolution is not likely to occur, whether due to a lack of cooperation or the need to apply to the court to replace the trust corporation as executor and/or trustee, it is important that appropriate advice and support is sought in a timely manner. This may be especially so if the trust corporation is in liquidation and holds documents and/or assets in order to avoid the possibility that the documents might cease to be recoverable or the assets applied to satisfy the company’s creditors.
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