Choosing trustees is one of the most consequential choices you will make when establishing a trust. Trustees are the people—or professionals—who will hold legal control over the assets in your trust and make decisions that directly affect your beneficiaries. In many cases, they will continue in this role long after the founder has passed on.

Whether your trust is meant to safeguard family wealth, provide for dependants, or manage business interests, its long-term success will be determined by the character, competence, and conduct of its trustees. A well-structured trust, managed by the right people, protects against disputes, delays, mismanagement, and financial loss. The wrong trustee, on the other hand, can cause irreparable damage.

South African trust law gives trustees significant authority—but it also expects a great deal from them. That’s why thoughtful trustee selection is more than a formality: it’s a defining decision.

Understanding the Role and Responsibilities of Trustees

A trustee is a person or legal entity appointed to manage the assets and affairs of a trust in accordance with the trust deed and the law. In South Africa, trustees are bound by the Trust Property Control Act and are held to a high standard of conduct—both legally and ethically.

At its core, the trustee’s role is fiduciary. This means acting in the best interests of the beneficiaries at all times, with care, skill, diligence, and impartiality. Trustees do not own the trust assets—they hold them for the benefit of others. Their decisions must always align with the purpose of the trust and the instructions laid out in the trust deed.

Key trustee responsibilities include:

• Protecting and preserving trust assets
• Managing investments or distributions prudently
• Keeping accurate records and financial statements
• Acting impartially when multiple beneficiaries are involved
• Reporting to the Master of the High Court when required

Failure to perform these duties—whether due to negligence, dishonesty, or lack of understanding—can lead to removal, personal liability, or legal action.

This is why appointing trustees who fully grasp the weight of the role is essential. It’s not about honouring someone with a title. It’s about trusting them with your legacy.

Trustee Requirements Under South African Law

In South Africa, the appointment and regulation of trustees is governed primarily by the Trust Property Control Act 57 of 1988. This legislation ensures that anyone acting as a trustee is both legally authorised and accountable.

Before a trustee can begin administering a trust, they must be officially appointed by the Master of the High Court and issued with Letters of Authority. Even if someone is named in the trust deed, they may not act until this formal approval has been granted.

Who Can Be a Trustee?

There is no requirement for a trustee to be a South African citizen or to have formal qualifications—but they must:

• Be legally competent (i.e. not insolvent or mentally incapacitated)
• Be over the age of 18
• Be capable of performing fiduciary responsibilities
• Consent in writing to the appointment

In the case of certain trusts—particularly those with tax implications—the South African Revenue Service (SARS) may expect at least one independent trustee, especially when the trust is discretionary and the beneficiaries are related to the founder.

Key Compliance Steps:

1. Lodge trust documents with the Master of the High Court in the relevant jurisdiction
2. Submit acceptance of trusteeship forms (J417) with certified ID documents
3. Provide a security bond, unless waived by the Master
4. Receive Letters of Authority—only then may the trustee act

Failure to follow these procedures renders any decisions or actions taken by the trustee unlawful. This can expose the trust to risk and delay.

Given the technicalities involved, many founders choose to appoint a trust attorney—like those at VDM Attorneys—to manage the process and ensure full compliance from the outset.

Different Types of Trustees

Not all trustees are created equal—nor should they be. The ideal trustee panel is often a balanced mix of personal connection and professional oversight, depending on the nature and purpose of the trust.

Family Trustees

These are typically relatives, close friends, or trusted associates. Family trustees can bring personal insight and emotional alignment with the founder’s wishes and the beneficiaries’ needs. However, they may lack legal or financial expertise and can struggle to remain impartial in emotionally charged situations—particularly where inheritances, divorce, or sibling dynamics are involved.

Independent or Professional Trustees

These are individuals or entities with no personal stake in the trust—often attorneys, accountants, or fiduciary practitioners. Their job is to provide an objective, expert perspective, uphold the law, and act as a safeguard against bias or mismanagement. Independent trustees are particularly valuable in:

• Discretionary trusts (where trustees have wide decision-making powers)
• Complex financial or tax arrangements
• Situations involving vulnerable or minor beneficiaries

SARS may require an independent trustee where the trust is family-controlled and income is retained in the trust.

Corporate Trustees

In some cases, a financial institution or fiduciary company may be appointed as a trustee. This brings consistency, continuity, and access to professional systems, but may lack the personal touch or flexibility smaller trusts require.

Key takeaway: The right mix of trustees depends on the size of the trust, its goals, its risk profile, and the people involved. An experienced trust attorney can guide you on the optimal combination—and help draft a trust deed that supports it.

Core Qualities to Look For in a Trustee

Legal eligibility is one thing. But a trustee’s real value lies in their judgment, temperament, and trustworthiness. When choosing trustees, it’s essential to look beyond titles or family ties and consider the qualities that will influence how they carry out their duties—especially when things get difficult.

• Integrity

Trustees must act with complete honesty, even when no one is watching. They’re stewards of other people’s assets and decisions made in bad faith—no matter how small—can unravel the trust entirely.

• Impartiality

A good trustee treats all beneficiaries fairly, even if they know some better than others. Favouritism, unconscious bias, or getting emotionally entangled in family disputes can cause serious harm.

• Financial Competence

Trustees often make decisions involving money—investments, property management, tax filings, and more. While they don’t need to be financial professionals, they must be comfortable managing basic financial matters or working alongside professionals who are.

• Diligence

Administering a trust is not a once-off duty. It requires follow-through, regular record-keeping, and timely decision-making. Trustees must have the time and willingness to stay engaged.

• Communication Skills

Clear communication with beneficiaries and fellow trustees can prevent confusion, defuse tension, and build confidence in the trust’s administration.

• Availability and Longevity

A trustee should be available to act when needed—especially during urgent decisions or transitions. For longer-term trusts, consider the trustee’s age, capacity, and long-term availability.

A trustee with the right mix of these qualities becomes a stabilising force—someone beneficiaries can rely on when emotions run high or uncertainty arises. 

Common Mistakes in Trustee Selection

Even well-intentioned founders can make costly errors when appointing trustees—errors that often only reveal themselves when it’s too late to undo the damage. Here are some of the most common pitfalls:

• Choosing Based on Obligation or Sentiment

Appointing a sibling, friend, or eldest child simply because it feels expected can backfire if that person lacks the skills or temperament for the role. Sentiment should never outweigh suitability.

• Overlooking Conflicts of Interest

Trustees must act in the best interests of the trust—not themselves. If a trustee stands to benefit from decisions (directly or indirectly), their judgment may become clouded, even unintentionally.

• Ignoring the Need for Financial or Legal Oversight

Appointing only personal connections—without an independent or professional trustee—can lead to blind spots in compliance, tax planning, and record-keeping.

• Not Planning for Succession or Vacancy

Failing to name alternate trustees or a clear process for replacement can leave the trust paralysed if a trustee dies, resigns, or is removed.

• Appointing Too Many Trustees Without Clear Rules

Too many voices without defined roles or decision-making processes can result in delays, deadlock, or internal disputes.

Avoiding these missteps starts with honest evaluation and sound legal guidance. VDM Attorneys helps clients think through these decisions strategically—not just emotionally—ensuring the trust is built on a foundation that can withstand pressure, change, and time.

The Importance of a Professional or Independent Trustee

While many founders lean toward appointing only family members or close friends as trustees, this approach often leaves the trust vulnerable to emotional conflicts, poor decision-making, and legal non-compliance. That’s where the value of an independent or professional trustee becomes clear.

What Is an Independent Trustee?

An independent trustee is someone with no personal stake in the trust or its beneficiaries. Their role is to bring objectivity, legal awareness, and a steady hand—especially in trusts where discretion, fairness, and compliance are essential.

Benefits of Including a Professional or Independent Trustee:

Objectivity: They offer a neutral perspective during disputes or emotionally charged decisions.

Expertise: Professionals such as attorneys or fiduciary specialists understand legal obligations, tax implications, and financial best practices.

Continuity: If a family trustee passes away, becomes incapacitated, or disengages, a professional trustee ensures uninterrupted administration.

Credibility: An independent presence reassures beneficiaries and regulators that the trust is being run impartially and transparently.

Compliance: SARS increasingly expects independent trustees in certain family-controlled trusts—especially those with retained income or discretionary terms.

For trusts that involve complex structures, vulnerable beneficiaries, or long time horizons, the inclusion of a professional trustee isn’t just a recommendation—it’s a safeguard.

Trustee Powers and Limitations - What Can They Actually Do?

Trustees hold significant authority over the assets and decisions of a trust—but that power is not unlimited. Their scope of action is governed by two things:

1. The terms of the trust deed
2. The Trust Property Control Act

Understanding what trustees can and can’t do is essential—not only for trustees themselves, but for founders and beneficiaries who rely on them.

What Trustees Can Do (If Permitted by the Deed):

• Administer and invest trust property
• Open and operate bank accounts in the name of the trust
• Distribute assets to beneficiaries
• Make discretionary decisions (if allowed)
• Engage professional advisors (lawyers, auditors, etc.)
• Sign contracts, buy or sell assets
• Maintain financial records and submit tax returns

These powers must be exercised in good faith, with care, skill, and diligence, and always within the boundaries of the trust’s purpose.

What Trustees Cannot Do:

• Act before receiving Letters of Authority from the Master
• Make decisions outside the scope of the trust deed
• Use trust assets for personal benefit
• Delegate core fiduciary duties without authorisation
• Discriminate unfairly between beneficiaries
• Ignore statutory obligations or the founder’s instructions

Any breach of these duties—whether by negligence or misconduct—can expose a trustee to personal liability, removal, and potential legal action.

Removing or Replacing a Trustee

Even with careful planning, there are times when a trustee becomes unfit, unwilling, or unable to serve. South African trust law provides mechanisms to remove or replace trustees—but the process must be handled lawfully and with precision.

Grounds for Removing a Trustee

A trustee can be removed if they:

• Breach their fiduciary duties
• Mismanage or misuse trust assets
• Act in conflict with the interests of the trust
• Become incapacitated, insolvent, or convicted of an offence involving dishonesty
• Refuse or neglect to act
• Are deadlocked with other trustees and obstruct the trust’s functioning

In many cases, the trust deed itself will include provisions for removal—such as allowing the founder or remaining trustees to act by majority. Where the deed is silent or contested, an application can be made to the Master of the High Court or the High Court itself.

The Legal Process

Voluntary resignation: A trustee may resign by written notice to the Master.

Master’s intervention: The Master can remove a trustee under section 20 of the Trust Property Control Act.

Court application: In cases of misconduct or dispute, affected parties can approach the court for formal removal.

Appointing a Replacement

A successor trustee must follow the same legal process as the original—providing consent, being approved by the Master, and receiving Letters of Authority before acting.

Removing a trustee—especially when the situation is difficult—requires care, evidence, and often legal representation. VDM Attorneys regularly assists in both contested and uncontested trustee removals, ensuring the trust’s purpose is not derailed by poor stewardship or conflict.

Trustee Appointments in Inter Vivos vs Testamentary Trusts

The type of trust you establish has a direct impact on how trustees are appointed—and how long they serve. In South African law, the two most common types of trusts are inter vivos trusts and testamentary trusts, each with distinct considerations.

Inter Vivos Trusts (Living Trusts)

These are created during the lifetime of the founder, usually to:

• Protect family wealth
• Provide for minors or dependants
• Manage business or investment assets

Because inter vivos trusts can span decades, it’s essential to appoint trustees with both longevity and competence, and to make provision for successor trustees in case of death, resignation, or removal.

Key considerations:

• Trustees are often involved from the moment the trust is formed
• The founder typically has more input in selecting trustees
• Flexibility in replacing or rotating trustees should be built into the deed

Testamentary Trusts

These are formed after the death of the testator, as outlined in their will. Testamentary trusts often serve to:

• Manage inheritances for minor children
• Provide structured income for vulnerable dependants

Since the trust only comes into effect upon death, careful drafting is essential. The testator must:

• Clearly name the intended trustees in the will
• Provide fallback options if those trustees are unavailable
• Ensure the will is compliant with legal formalities, or risk the trust being invalid

In both types of trusts, vague or poorly drafted trustee clauses lead to disputes, delays, and even nullification. VDM Attorneys works closely with clients to ensure that trustee appointments—whether during life or in a will—are legally sound, practical, and future-proof.

How to Structure Your Trustee Appointment Clause

A well-drafted trustee clause is the backbone of an effective trust. It not only names the initial trustees, but also anticipates the future—vacancies, disputes, replacements, and decision-making procedures. When poorly structured, this single clause can create years of conflict and legal entanglement.

What to Include in Your Trustee Appointment Clause:

• Clear Identification of Trustees
  • Full names and ID numbers to avoid ambiguity.
  • Indicate whether they are appointed in their personal or professional capacity.
• Authority to Appoint and Remove Trustees
  • Who has the power to appoint or remove trustees (e.g. the founder, a majority of existing trustees, an independent party)?
  • Under what circumstances can this power be exercised?
• Minimum and Maximum Number of Trustees
  • Define how many trustees must serve at any given time.
  • Provide clarity on quorum requirements for decision-making.
• Provision for Alternate or Successor Trustees
  • Plan for death, resignation, incapacity, or unavailability.
  • Ensure the trust isn’t left inoperative due to a trustee’s absence.
• Decision-Making Protocols
  • Specify whether decisions must be unanimous or by majority.
  • Outline how deadlocks should be resolved.
• Independent or Professional Trustee Requirements
  • If required by SARS or by the founder, include this explicitly.
• Remuneration (if applicable)
  • Set out whether trustees may be paid, and if so, how that amount is determined.

These provisions are not just administrative—they determine the continuity, legality, and functionality of your trust. 

Why Legal Guidance Matters

Appointing a trustee is not simply a matter of trust—it’s a legal commitment with long-lasting consequences. Whether you’re setting up a new trust, reviewing an existing one, or managing a trustee dispute, the risks of getting it wrong are too high to ignore.

Poorly drafted clauses, unqualified trustees, and unclear succession plans can lead to:

• Delays in asset transfers
• Family disputes
• Tax inefficiencies
• Legal challenges from beneficiaries or SARS
• Court intervention and reputational harm

A specialist trust law attorney doesn’t just help with the paperwork. They provide the legal insight, foresight, and structure needed to ensure your trust functions effectively—today and decades into the future.

VDM Attorneys - Trust Law Attorneys

From drafting trust deeds and appointing trustees, to providing independent trustee services and navigating disputes or removals. VDM Attorneys are here to help you with your Trust. We’re not just your legal partner—we’re a safeguard for your legacy.

Contact us.