The distinction: Trustee vs Trust Administrator

trustees
23 Feb 2024

In the world of trusts, the roles and responsibilities of individuals managing trust affairs can often become a source of confusion. Two key roles are trustees and trust administrators, each with distinct functions.

Trustee: A fiduciary with legal responsibilities

A trustee is a fundamental figure in a trust. The role of a trustee is established by the Trust Property Control Act 57 of 1988 (“TPCA”), and it is a position of great responsibility. Trustees are typically appointed by the founder (donor) of the trust or as per the terms of the trust deed.

Some key duties and responsibilities of trustees include:

Fiduciary duty: Trustees owe a fiduciary duty to the beneficiaries of the trust. This means that they are legally obligated to act in the best interests of the beneficiaries and the trust as a whole.

Control and decision-making: Trustees have control over trust assets and are responsible for managing, investing, and distributing trust property in accordance with the trust deed and the law.

Legal obligations: Trustees are legally accountable for their actions and decisions. They must comply with the TPCA and any other relevant laws governing trusts (such as tax and Financial Intelligence Centre regulations). Even where these are delegated to an administrator.

Risk of liability: Trustees can be held personally liable for breaches of their fiduciary duty or violations of the law. This makes the role a serious one with potentially significant consequences.

Trust administrator: A facilitator of administrative duties

In contrast, a trust administrator is a professional who may be appointed to assist with the administrative aspects of trust management. The TPCA does not explicitly define this role but is commonly used in practice to delegate specific non-fiduciary tasks.

Some key characteristics of a trust administrator include:

Administrative support: Trust administrators are typically engaged to handle administrative and financial tasks, such as record-keeping, accounting, tax compliance, and reporting. Their role is supportive in nature.

No fiduciary duty: Unlike trustees, trust administrators do not have the same level of fiduciary duty towards beneficiaries. Their role is to carry out administrative functions as specified by the trustees or the trust deed.

Limited legal responsibility: While trust administrators must still operate within the framework of the law, their legal responsibilities are more limited in comparison to trustees. They are not typically held personally liable for trust decisions.

Expertise in administration: Trust administrators are often professionals with expertise in financial and administrative matters. They ensure that trust affairs are managed efficiently and in compliance with relevant regulations.

Conclusion

The critical distinction between a trustee and a trust administrator under the TPCA lies in their roles and legal obligations. Trustees are fiduciaries with significant legal responsibilities and obligations to beneficiaries, while trust administrators primarily provide administrative support without the same level of fiduciary duty. It’s vital for trust founders and beneficiaries to clearly define the roles of trustees and trust administrators in the trust deed to avoid confusion and ensure efficient trust management.

Both trustees and trust administrators play vital roles in the effective management of trusts, with each contributing their expertise to uphold the objectives and integrity of the trust. If you have questions or require assistance in establishing or managing a trust, contact an attorney at SchoemanLaw to assist and guide you. We also help trusts establish governance frameworks to as to guide both trustees and administrators in relation to their roles and responsibilities.

Article sourced from SchoemanLaw Inc.

See also:

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)
Nicolene Schoeman-Louw

Mrs Nicolene Schoeman – Louw founded the firm in 2007, aged 24, and is now the Managing Director of the firm. Nicolene is an admitted Attorney of the High Court... Read more about Nicolene Schoeman-Louw

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