Page 21 - Nexia SAB&T Trust Guide 2022

APPOINTMENT AND NATURE OF OFFICE OF A TRUSTEE

■ Section 1 of the Trust Property Control Act defines a trustee as “any person
(including the founder of a trust) who acts as trustee by virtue of an
authorisation under Section 6....” (Letters of Authority).

Trust structure is created Trustee accepts the Trustee is appointed as such
in terms of the trust appointment under the trust instrument,
instrument by the Master or by the Court

■ The trustee acts in an official capacity, which is fiduciary in nature, meaning
that the trustee must honour the trust placed in him, and always act in the
best interests of the trust beneficiaries and the trust.
■ Section 9(1) of the Trust Property Control Act states that “a trustee shall,
in the performance of his duties and the exercise of his powers, act with
the care, diligence and skill which can reasonably be expected of a person
who manages the affairs of another.” Section 9(2) further states that any
provision contained in a trust instrument shall be void in so far as it would
have the effect of exempting a trustee from, or indemnifying him against
liability for a breach of trust, where he fails to show the degree of care,
diligence and skill as required in subsection (1).
■ A natural person or a corporate person may be a trustee.
■ The trustee (if there is only one trustee), or one of the trustees (if there is
more than one trustee), will be the representative taxpayer for the trust, and
will need to be registered as such with SARS.
■ Section 12 of the Trust Property Control Act states that trust property shall
not form part of the personal estate of the trustee, except in so far as he, as
trust beneficiary, is entitled to the trust property. The trust assets therefore do
not form part of the trustee’s estate in the event of his sequestration.
■ The trustee is not personally liable for the debts of the trust.
■ At least one independent outsider trustee should be co-appointed as trustee
to every trust in which (a) the trustees are all beneficiaries and (b) the
beneficiaries are all related to each other.
19