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Notes for Guidance - Protected Trust Deeds - Bankruptcy (Scotland) Act 2016

This guidance describes the general functions of Accountant in Bankruptcy and trustees in relation to their responsibilities regarding protected trust deeds (PTDs) which were granted on or after 30 November 2016

6.14 Change of trustee

The trustee may make such arrangements as appropriate to resign from office or to make contingency for circumstances in which another trustee may be nominated.

Creditors’ consent must be sought to approve a change of the fixed fee rate when the new trustee is appointed, see Section 183(2) of the 2016 Act.

If fee rates are to increase, the higher fee rate must not be charged until the date the replacement trustee is appointed, unless this has been approved by creditors or a sheriff.

An appropriately executed Deed of Assumption must be produced on each occasion a replacement trustee is appointed and a copy of this Deed must be sent to AiB, so the change of trustee details can be entered in the ROI.

If a replacement trustee is appointed for a large number of PTDs the notification to AiB may be made through a Deed of Assumption, signed by the original and replacement trustees, supported by a Schedule detailing all the PTDs affected by the change.

If a trustee is replaced as a result of a commercial arrangement between Insolvency Practitioners, or their firms, the cost of the replacement trustee process must not be claimed from the PTD estates, unless a sheriff has approved such payment.

The Keeper of the Register of Inhibitions has advised that, if a Schedule is submitted with a Deed of Assumption, listing multiple PTDs, each page of the Schedule must be signed by both the original and replacement trustees, or any inhibition that applies, will not be amended.

It is good practice for the replacement trustee to notify the creditors of their appointment. The discharge of the replacement trustee will have the effect of discharging any previous trustee unless there is a contrary ruling by a sheriff. AiB will record the change of trustee and this will be shown in the ROI.

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