Unless the powers of executors and trustees are extended or varied by the will, the powers are limited to those given by statute. The main statutory powers are set out here under:
Section 3 of the Trustee Act 2000 (the Act) gives a general power to invest in anything other than land.
Section 4(1) provides that when exercising any power of investment trustees must take into account the statutory investment criteria which are:
- The suitability to the trust of investments of the type proposed and of that particular investment as an investment of that type; and
- The need for diversification of investments of the trust, in so far as is appropriate to the circumstances of the trust.
Section 4(2) provides that trustees must review investments from time to time and consider whether they should change investments.
Section 8 gives power to acquire freehold or leasehold land in the United Kingdom. This can be for investment or residence by a beneficiary. It does not provide power to buy land abroad or an interest trust of investments in land.
Sections 11-27 authorise the appointment of agents, nominees and custodians subject to certain safeguards. Trustees will not be liable for the acts of their appointees unless they fail to exercise reasonable care and skill in appointment.
Section 14 provides that where trustees wish to delegate their asset management function, they must do so in writing.
The above, are, but some of the powers. The Act covers a multitude of aspects for the Trustee to bear in mind.
These powers are fiduciary. A sole, or sole surviving, executor or executrix may act alone in all cases. Where there is more than one executor or executrix, authority is joint for land (i.e. all must execute any deed) and joint and several for some personal items (i.e. just one may deliver an asset e.g. jewellery) to a beneficiary and get a good receipt and discharge).
The main duties of executors must be to safeguard the estate and, with due diligence:
- collect and realise the assets;
- pay the debts and legacies; and
- distribute the residue of the estate among the beneficiaries.