A trustee in a will is a term executors and administrators often encounter when dealing with probate. When someone dies and their will creates a trust, a trustee steps in to manage and protect the assets held within it. This article explains what that role involves, who can hold it, and what the law requires of them.
The key roles: executors, trustees and beneficiaries
Three terms come up repeatedly when an estate is being administered: executor, trustee and beneficiary. Often the same people hold more than one of these roles simultaneously. Understanding how each role differs helps estate administration run smoothly.
An executor deals with the estate immediately after death. Their job is to obtain the grant of probate, settle debts, and distribute or transfer assets. A trustee takes over where a will creates a trust, managing those assets over a longer period for the benefit of the beneficiaries.
If the will does not create a trust and gifts assets outright to the beneficiaries, the executors handle everything. You only need to appoint a trustee if your will creates a trust.
What is a will trust?
A will trust (also called a testamentary trust) is a legal arrangement created by a will. It comes into effect when the person who made the will dies. Assets are held by the trustees on behalf of the beneficiaries, under the conditions the deceased set out.
For a full explanation of will trusts and how they affect probate, see these related articles:
- The Will Trust
- What is a Discretionary Trust
- What is a Life Interest Trust
- What is a Bare Trust
- What is a Property Protection Trust
- When Property is Left in a Trust in a Will
Who can be a trustee in a will?
In general, any person aged 18 or over with mental capacity can act as a trustee under a will trust. However, certain circumstances can make a person unsuitable or ineligible.
Undischarged bankruptcy is the most significant practical objection: a bankrupt person should not act as a trustee, because their own finances are under the control of a trustee in bankruptcy. It is worth being precise about this, though. Unlike a company director, a bankrupt is not automatically disqualified from acting as a trustee, so an existing appointment does not simply become void. It is strong grounds for the court to replace them rather than a legal bar. Separately, a court can remove a trustee who acts dishonestly or in breach of their duties. If you are in any doubt about a proposed trustee’s eligibility, seek advice from a qualified solicitor.
A beneficiary under the will can also serve as a trustee. However, it is good practice to include at least one trustee who is not a beneficiary. This helps to avoid conflicts of interest and protects the interests of all beneficiaries.
How many trustees can a will trust appoint?
The answer depends on whether the trust holds land.
Trusts that include land: the maximum permitted is four, under section 34 of the Trustee Act 1925. If more than four are named, only the first four who are able and willing to act will serve.
There is no legal minimum, and this is widely misstated. A sole trustee can validly hold land. What a sole trustee cannot do is give a valid receipt for capital money arising on a sale, under section 14(2) of the Trustee Act 1925, and for a buyer to take free of the beneficial interests the capital money has to be paid to at least two trustees or a trust corporation, under section 27(2) of the Law of Property Act 1925. The practical effect is the same in the end: a second trustee has to be appointed before a sale can complete.
Trusts with no land: There is no statutory maximum. In practice, two to four trustees is the recommended range, as this provides checks and balances and allows for continuity if one trustee is no longer able to serve. A sole trustee can act in a non-land trust, but it is not advisable.
Appointing at least two trustees is sensible in all cases. If one trustee dies or loses capacity, the trust can continue without a gap.
What does a trustee in a will actually do?
A trustee under a will trust holds legal title to the trust assets. Their core job is to safeguard those assets and administer or distribute them in line with the terms of the will. This is a long-term responsibility that continues well beyond the initial estate administration.
Where the will permits it, trustees typically have the power to:
- Insure, manage and sell trust property
- Invest trust assets, following the standard investment criteria set out in the Trustee Act 2000
- Take proper advice on investments, which section 5 of that Act requires unless it is reasonable not to
- Pay income or capital from the trust to beneficiaries
- Lend money to beneficiaries or borrow for the benefit of the trust
- Appoint professionals (such as solicitors, accountants or estate managers) to assist them
- Pay legitimate expenses from trust funds, including the costs of professional advisers
The extent of these powers depends partly on the terms of the will and partly on the type of trust. Some trusts grant wide powers; others are more restrictive. A solicitor can advise on the scope of the powers in any specific trust.
What are the responsibilities of a trustee under a will trust?
Trustees owe a fiduciary duty (a legal obligation to act with honesty, loyalty and good faith) to the beneficiaries at all times. This is one of the highest standards the law imposes on any individual.
When making decisions, trustees must act independently and impartially. They must balance the interests of all beneficiaries fairly, even where those interests conflict.
Two further obligations sit alongside that, and they are the ones trustees are most often found to have breached. Section 1 of the Trustee Act 2000 imposes a statutory duty of care, requiring trustees to exercise the care and skill that is reasonable in the circumstances, judged more strictly where they hold themselves out as having special expertise. And trustees must not profit from their position or put themselves in a position of conflict. That is why a trustee who is also a beneficiary needs the will to authorise it, and it is the same principle behind appointing at least one trustee who is not a beneficiary.
Compliance, tax and record-keeping
Trustees are also responsible for keeping the trust legally compliant. This includes:
- Paying any tax due from the trust
- Keeping accurate records of all trust transactions
- Providing beneficiaries with information about the trust as required by law
In addition, most trusts in England and Wales must be registered with HMRC’s Trust Registration Service (TRS). Any change to the trust, such as a change of trustee, must be reported within 90 days of the trustees becoming aware of it.
For a trust created by a will, registration does not start immediately. While the trust holds only property from the estate, it is excluded from registration for two years from the date of death. If it is still running at that point, the trustees have 90 days from the two-year anniversary of the death to register. Two things end that grace period early: taking in property from outside the estate, and a UK tax liability arising, which makes the trust registrable as a taxable trust regardless.
The registration rules changed on 30 June 2026 under the Money Laundering and Terrorist Financing (Amendment) Regulations 2026. The two-year post-death exclusion was extended to trusts created by a deed of variation and to certain co-ownership trusts where a trustee has died, and a new exclusion was added for very small non-taxable trusts.
The penalty for failing to register is £5,000 per trust under Part 9 of the Money Laundering Regulations 2017. It is discretionary rather than automatic: HMRC normally issues a warning letter first and only charges where trustees then fail to register or to explain why registration is not required.
For advice specific to your trust, speak to a qualified solicitor or tax adviser.
Trustee in a will: a summary
The role of a trustee under a will trust carries real legal weight. Trustees are legally responsible for managing the trust in accordance with the deceased’s wishes and in the genuine interests of the beneficiaries. The law holds them to a high standard of honesty, care and impartiality.
If you have been appointed as a trustee and need help fulfilling your duties, seek professional guidance. Trust administration can be complex and time-consuming. Many trustees work with solicitors or probate practitioners to ensure they meet their obligations correctly.
The Probate Network works with a number of regulated probate lawyers who can help. You can book a free legal consultation through The Probate Network.
Frequently asked questions
What is the difference between an executor and a trustee in a will?
An executor deals with the estate immediately after death: obtaining the grant of probate, paying debts, and transferring assets. A trustee takes on responsibility once assets have been placed into a trust created by the will, managing them over a longer period for the benefit of the beneficiaries. The same person can hold both roles.
Can a beneficiary be a trustee in a will trust?
Yes. A beneficiary can also serve as a trustee under English and Welsh law. However, it is good practice to include at least one trustee who is not a beneficiary, to reduce the risk of conflicts of interest and to protect the interests of all other beneficiaries.
How many trustees does a will trust need?
Where the trust holds land the maximum is four, and there is no legal minimum: a sole trustee can hold land validly. What a sole trustee cannot do is give a valid receipt for capital money on a sale, so a second trustee has to be appointed before a sale completes. Where the trust holds no land there is no statutory maximum, though two to four is sensible. Appointing at least two trustees is advisable in all cases, so the trust can continue if one becomes unable to act.
Do trustees have to register the trust with HMRC?
Most trusts in England and Wales must be registered with HMRC’s Trust Registration Service, but a trust created by a will gets a two-year grace period from the date of death while it holds only estate property. After that, trustees have 90 days from the two-year anniversary to register. Any later change, such as a change of trustee, must be reported within 90 days of the trustees becoming aware of it. The penalty for failing to register is £5,000 per trust, charged at HMRC’s discretion and normally after a warning letter. A solicitor can confirm whether your trust needs to be registered.
This article is for general guidance only and does not constitute legal, tax or financial advice. Rules and thresholds can change, and every estate is different. For advice on your own circumstances, speak to a qualified solicitor. You can book a free legal consultation through The Probate Network.
