Being appointed an executor or trustee in a will may seem an honour. After all, you’re being asked to stand In the willmaker’s shoes and dispose of their assets when he or she is unable to do so themselves. And, though it may be considered the ultimate sign of trust, it also comes with a great deal of responsibility – both moral and legal, so it’s best to know your obligations before agreeing to the task.

Settled estates

Last updated

1 July 2022

A beneficiary who does not receive any capital, but whose share is restricted to the income only, is said to have an interest in a settled estate. For example, the willmaker may have left the income from the estate to a spouse for their life, and after the spouse’s death, the capital to their children. The obligations of the trustee then are to invest the capital fund, to preserve the value of the investment for the children, and to pay the income to the spouse during their lifetime.

The manner in which any such settled share is invested depends on the powers given by the deceased in the will. If these powers are not set out in the will, they are restricted to the investment powers for trusts set out in the Trustee Act 1958 (Vic). See the Property Law Act 1958 (Vic).

Where life interests in real estate are left in a will, the Settled Land Act 1958 (Vic) governs how the life interest is administered. Under this Act, the life tenant is given powers that override those of the trustees of the will.

The law in this area is very complex and professional advice should be taken both before putting such provisions in a will or where such a provision appears in a will being proved.

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