CG31120 - Death and Personal Representatives: Legatees and their treatment: Who is a legatee: Legatees: distinguishing personal representatives and trustees

It is very common for wills to appoint the same persons as executors and trustees. In cases of intestacy a statutory trust may be created. Unless and until different persons are appointed as trustees, the administrators appointed to deal with the intestacy will also be the trustees of the statutory trust.

Because the same persons act both as personal representatives and as trustees it is often not immediately apparent in what capacity those persons carried out certain acts. In order to decide such questions you should consider whether residue has been ascertained, see CG30780+, and whether, as a consequence, the beneficial interest in assets has vested in trustees rather than being retained by the personal representatives.

For acts occurring before residue has been ascertained you should contend that the persons have acted as personal representatives unless there is specific evidence that they assented to the assets involved vesting in themselves as trustees before residue was ascertained.

For acts occurring after residue has been ascertained, except in exceptional circumstances, see CG30710, the beneficial ownership of the assets will have vested in the trustees as legatees on the ascertainment of residue. Any acts carried out after that time will therefore be carried out by those persons acting as trustees.