Katie Alsop, solicitor, explains how and why the public trustee may be appointed as executor of a will.

Letters of administration are issued when someone dies without leaving a will (intestate). Unadministered intestate estates now vest in the public trustee, rather than the president of the Family Division, before a grant is made.

The public trustee, appointed by the lord chancellor, has responsibility for unadministered intestate estates, and can also be appointed as an executor of an estate by a testator. 

This article will look at why and how the public trustee may be appointed, the remit and restrictions of the public trustee, and procedural and practical points which should be taken into consideration.

When and why would the public trustee be appointed?

In circumstances where there is no one willing and able to act as executor of a will who is over the age of 18, not bankrupt, and has no criminal convictions, it is possible for the public trustee to be appointed to act as executor.

It is also possible for the public trustee to be appointed as executor of an estate if the person who benefits is unable to manage their own finances or property. 

In circumstances where a person dies intestate and their estate is fully or partially unadministered, the public trustee can also be appointed to administer or finish administering the deceased’s estate.

If a testator wishes to make a will, but there is nobody to act as executor at the time of their death, and the testator is aware that this is likely to be the case, the appointment of the public trustee is a way in which an attempt can be made to both leave a will ensuring that the testator’s assets are distributed in accordance with their wishes, while ensuring that there is a suitable person appointed to administer their estate.

Procedure: how do you appoint the public trustee?

If a solicitor is approached by a client who wishes to appoint the public trustee as executor of their estate, the testator will be required to write to the public trustee to explain their circumstances. It is prudent to explain that all other avenues have been exhausted in terms of identifying an alternative willing and able executor.

Williams on Wills and Williams on Wills Precedents contain helpful guidance as to the information that should be provided, and in the precedents publication, a proforma is included for the purpose of informing the public trustee of a testator’s circumstances and estate.

There is, however, no specific requirement about how the information is presented. But it goes without saying that the more information that is provided in relation to the testator’s circumstances, the better it is for the public trustee to make an informed decision about the appointment at the time of death.

Once the testator has died, in order for the public trustee to make an assessment about whether to accept the appointment, the public trustee will endeavour to find out if there is anyone who is able and willing to act as executor and administer the deceased’s estate. The public trustee is able to refuse appointment, even if investigations reveal that there is no alternative suitable person.

The powers and duties of the public trustee

The public trustee is authorised to act as an executor administrator, in addition to the following:

• in the administration of small value estates
• as a custodian trustee
• as an ordinary trustee
• as a judicial trustee

The public trustee can act alone, or jointly with others. As a general approach, the public trustee will only act where it really is a last resort.

The public trustee has authority to appoint for the purposes of administering any trust, such as solicitors, bankers, accountants, brokers, or other persons considered to be necessary.

It is worth noting that the public trustee has a duty to act in solvent estates where the estate has a gross value of £1,000 or less, where the beneficiaries of the estate are of small means, unless there are reasonable non-financial grounds for refusing. In circumstances where the beneficiaries are in particular need, there is clearly value in ensuring that they receive the money bequeathed to them.

The public trustee is prevented by statute from:

• Accepting any trust that involves the management or carrying on of any business, unless they obtain permission from the Treasury.
• Acting where the estate is insolvent, or where a trust is for the benefit of creditors.
• Acting where a trust is exclusively for religious or charitable purposes.

The public trustee will ordinarily decline to act in a trust containing a power to remove the trustee. (Specific requirements exist where the public trustee acts as a custodian trustee, which is outside the scope of this article.)

How is the public trustee paid?

If the public trustee accepts an appointment, the fees for acting are settled from the estate. The levels of fees which are charged are fixed by the lord chancellor.

Practical issues

There are a number of practical issues to take into consideration when advising about the potential appointment of the public trustee.

The appointment of the public trustee can be joint or several, and if joint, can be with a lay person. If a joint appointment is requested by the testator, it may be helpful for the co-executor to be informed of their and the public trustee’s appointment. The reason for this is that there is a duty on the co-executor to tell the public trustee on the testator’s death, of his appointment. 

In terms of drafting, the testator should be advised that if the trust contains a power to remove the trustee, it is normal for the public trustee to decline such an appointment. This may have an impact on how the testator sets up a will or trust.

The testator should be made aware that the public trustee has no jurisdiction to act in Scottish, Irish, colonial or foreign trusts. Furthermore, the public trustee cannot act contrary to the restrictions imposed by statute, as set out above.

Appointing the public trustee is unlikely to be a request received by practitioners on a day-to-day basis, so care must be taken when such instructions are received. 

If you wish to appoint the public trustee as executor of your will, it is well worth spending time seeking out a practitioner who is familiar in this niche area of work to ensure that the procedure is followed correctly, and that you are placed in the best possible position on death to ensure that the public trustee accepts the appointment.

About the author

Katie Alsop is a solicitor in the contentious probate team at Wright Hassall LLP.