Appointing a New Trustee UK (2026): Trustee Act 1925 s.36, Retirement, Court Appointment and Land Registry

The statutory power to appoint a new trustee is contained in Trustee Act 1925 s.36. It arises in specific circumstances and is exercisable by specified persons: (1) THE GROUNDS FOR APPOINTMENT (TA 1925 s.36(1)): a new trustee may be appointed in place of an existing trustee who: (a) is dead; (b) remains outside the United Kingdom for more than 12 months continuously; (c) desires to be discharged from the trust (retire); (d) refuses to act as trustee; (e) is unfit to act — for example, has been made bankrupt, has been convicted of an offence of dishonesty, or has a serious disqualifying conflict of interest; (f) is incapable of acting — mental incapacity; severe physical incapacity; (g) is a minor (under 18, who legally cannot be a trustee); (2) WHO CAN EXERCISE THE s.36 POWER: (a) the surviving or continuing trustee(s) — those who remain in office or are not the one being replaced; (b) the personal representatives (executors or administrators) of the last surviving trustee, where all trustees have died or been replaced; (c) the trust instrument may also name a specific person with the power of appointing new trustees (a 'protector' or named appointor) — in which case that person takes precedence; (3) THE APPOINTMENT MUST BE IN WRITING: section 36 appointments should be made in writing. While a deed is not strictly required for the exercise of the power itself (for personal property trusts), a deed is strongly advisable because: (a) it provides clear evidence of the appointment; (b) for land trusts, the appointment must be by deed for the automatic vesting provisions of s.40 to apply; (c) the deed enables the new trustee to be joined to the trust instrument for future actions; (4) ADDITIONAL TRUSTEES: section 36(6) also permits an additional trustee to be appointed (not just a replacement) — up to the maximum number permitted (4 for land under LPA 1925 s.34; no statutory maximum for pure personal property trusts). A trustee can appoint an additional trustee even if no existing trustee is being removed.

Where the statutory power of appointment in TA 1925 s.36 cannot be exercised — because there are no surviving or continuing trustees and no personal representative of the last trustee able to act — the court can appoint a new trustee: (1) COURT APPOINTMENT UNDER TA 1925 s.41: the High Court (Chancery Division) has inherent jurisdiction and statutory power under TA 1925 s.41 to appoint a new trustee. The court appoints whenever it is 'expedient to appoint a new trustee or new trustees, and it is found inexpedient, difficult, or impracticable so to do without the assistance of the court'. Common scenarios: (a) the sole trustee has died intestate with no personal representative available to exercise the s.36 power; (b) a sole trustee has lost mental capacity and has no attorney who can exercise the s.36 power; (c) a dispute between beneficiaries makes the s.36 appointment impossible; (d) the person with the power of appointment refuses to exercise it; (2) WHO MAKES THE APPLICATION: any person interested in the trust property — typically a beneficiary — can apply to the court under CPR Part 64 (claim for directions). The application is made to the Chancery Division; (3) COSTS: a court appointment is significantly more expensive than a s.36 appointment (court fees; solicitor costs) and should be used as a last resort. Legal costs are generally payable from the trust fund; (4) TRUSTEE CORPORATION OPTION: where the trust is long-running and all individual trustees have died or become incapable, appointing a trust corporation (a professional trustee company) under s.41 is a practical solution — the corporation can act indefinitely without the risk of further deaths; (5) COURT APPOINTED TRUSTEE'S POWERS: a court-appointed trustee has all the powers of a trustee appointed under s.36 — including the automatic vesting of trust assets under s.40.

A trustee who wishes to step down from the trust can do so by retirement. The rules differ depending on whether a replacement is being appointed: (1) RETIREMENT WITH REPLACEMENT (TA 1925 s.36): the most straightforward route. The retiring trustee is 'replaced' by a new trustee appointed under s.36 by the continuing trustees. The appointment deed both appoints the new trustee and discharges the retiring trustee simultaneously. The retiring trustee signs the deed. The new trustee is vested in the trust assets; (2) RETIREMENT WITHOUT REPLACEMENT (TA 1925 s.39): a trustee may retire from the trust without a replacement being appointed if — and only if — ALL of the following conditions are met: (a) after the retirement there will be at least two remaining individual trustees (or one trust corporation) to continue the trust — this ensures sufficient trustee numbers for future administration (especially for giving a valid receipt for capital money from land under LPA 1925 s.27); (b) the retirement is by deed signed by the retiring trustee; (c) the remaining trustees and any person empowered to appoint trustees all give written consent to the retirement; (3) WHAT HAPPENS ON RETIREMENT: (a) the retiring trustee is discharged from all future liability in relation to the trust; (b) trust assets vest in the remaining trustees automatically under TA 1925 s.40 for most assets (registered land requires a Land Registry application); (c) the retiring trustee should take steps to execute any outstanding Land Registry transfers before or at retirement; (4) CAN A SOLE TRUSTEE RETIRE WITHOUT REPLACEMENT: NO — a sole trustee cannot retire without a replacement being appointed. After retirement there would be no trustee. If the sole trustee wishes to retire, a new trustee must be appointed under s.36 first, or the court must appoint under s.41; (5) EXECUTOR AS TRUSTEE: where the executors of an estate are also the trustees of a testamentary trust, the retirement of one executor/trustee follows the same s.39 process — but the executor capacity and the trustee capacity should be treated separately for clarity.

One of the most practically important provisions is the automatic vesting of trust assets in the new trustees following an appointment: (1) AUTOMATIC VESTING UNDER TA 1925 s.40: when a new trustee is appointed by a deed that expressly states it is executed under TA 1925 s.36, the deed itself operates as a transfer of most trust assets to the new trustee — without the need for a separate conveyance or transfer for each asset. The new trustee is automatically vested in: (a) all trust property that was vested in the outgoing trustee; (b) all property that would have been vested but for a contingency; (c) all trust property — including shares, savings, investments, personal property; (2) WHAT IS NOT AUTOMATICALLY VESTED — REGISTERED LAND: the automatic vesting provisions of s.40 do NOT apply to registered land (land whose title is registered at HM Land Registry). For registered land held in the trustee's name, a Land Registry application is required to update the registered proprietors. The new trustee must be registered at the Land Registry before they can formally deal with the land. The appropriate Land Registry form is: (a) Form AP1 (application to update the register); (b) Supported by a certified copy of the deed of appointment; (c) The Land Registry updates the proprietors register accordingly; (3) THE FORM A RESTRICTION AND OVERREACHING: where land is held on trust, the Land Registry typically has a Form A restriction on the title — requiring at least two trustees to give a valid receipt for capital money on any disposal (sale, mortgage). Ensuring there are always at least two registered proprietors (trustees) is therefore important for any future dealing with the land; (4) SHARES AND INVESTMENTS: for shares registered in the outgoing trustee's name, the registrar of the company (or stockbroker/platform) may require a formal stock transfer or notification of the appointment before updating the register to the new trustees' names. In practice, s.40 provides the legal vesting even though the share register may not immediately reflect this; (5) TRUSTEE'S DUTY TO ENSURE VESTING: the new trustee should take steps to get all trust assets formally into their name (or the joint names of all trustees) promptly after appointment — updating bank accounts, share registers, and the Land Registry as appropriate.

The rules on trustee numbers differ depending on the nature of the trust assets and the trust type: (1) MINIMUM TRUSTEES FOR GIVING A VALID RECEIPT FOR LAND: under Law of Property Act 1925 s.27, a valid receipt for capital money arising from a disposition of land must be given by at least two trustees or a trust corporation. A sole trustee can legally HOLD land on trust, but cannot alone give a valid receipt on a sale — the buyer's solicitor will require at least two trustees to sign the receipt for the purchase price. This means in practice a minimum of two trustees is needed to deal with (sell or mortgage) trust land; (2) MAXIMUM TRUSTEES FOR REGISTERED LAND: under Land Registration Act 2002 and LPA 1925 s.34, a maximum of four trustees may be registered as proprietors of a registered title. If there are more than four trustees, only four can be registered — the others are unregistered co-owners. In practice, trusts rarely have more than four individual trustees; (3) TRUST CORPORATIONS: a trust corporation (a company that is authorised to act as a trustee — typically a bank's trustee arm, solicitor LLP, or professional trustee company) counts as two trustees for the purpose of the receipt rule. A sole trust corporation can give a valid receipt for capital money from land — no second trustee needed. Trust corporations are useful for long-running trusts where individual trustees may die; (4) NO STATUTORY MINIMUM FOR PERSONAL PROPERTY TRUSTS: for trusts that do not hold land (cash, investments, personal property), there is no statutory minimum number of trustees. A sole trustee of a personal property trust is perfectly valid — though having at least two trustees provides a safeguard; (5) TRUSTEE ACT 1925 s.37 — PROTECTIVE APPOINTMENT: where there is only one trustee and new trust land is to be conveyed, the conveyor is not obliged to see that there are sufficient trustees. However, prudent conveyancing requires confirmation of trustee numbers before completing a purchase.