Family Protection Trusts (FPTs)
If you transferred assets (house, cash, bonds) to an FPT, you are no longer the owner; the Trustees jointly hold the legal title.
This does NOT mean they can do what they wish with the assets. It does mean that even if you are one of the Trustees you cannot on your own deal with the assets. It’s important to note that Trustees who are not beneficiaries as defined in the trust deed are not entitled to any share in the trust assets. Don’t worry that you have signed over a share of the eventual sale proceeds of your house to the McClures names – you have not.
Trustees must agree on such things as whether and when to sell a house, how to invest the sale proceeds and how to distribute the Trust assets amongst beneficiaries on winding up the Trust. Where there is no consensus majority rule may apply in Scotland, but all must agree in England/Wales unless the Trust Deed contains a specific provision to that effect.
The Trustees hold the legal title to the Trust assets in Trust for the beneficiaries subject to their powers and duties set out in the Trust Deed and the common/statute law of Scotland or England/Wales as appropriate.
What’s the difference between a Scottish Trust and an English Trust?
The wording of the trust deed is significantly different because the Trust uses and reflects the common/statute law of wherever your main residence is. The fact that you used a Scottish-based solicitor’s firm is not pertinent so long as they adhered to, and applied, the relevant law to your Trust.
One significant difference concerns the ability to remove and appoint Trustees. The English Trust Deeds give specific powers to the Settlor whilst the Scottish Trusts do not. Another difference is that the English Trusts Deeds identify the property transferred to the Trust on its creation. The Scottish Trusts we have seen leave this to be dealt with in a separate Deed.
You will likely need professional help to remove and replace the McClure / Jones Whyte Trustees.
Note on Fees: The McClure/Jones Whyte Trustees may demand a fee and an indemnity (protection from future claims) in exchange for their cooperation and signatures on a Deed of Assumption and Resignation (DOAR). Be prepared for this and consult with your solicitor.