Part 3.1 Appointment of NSW Trustee as executor or administrator or collector under order to collect
22 Grant of probate or administration to NSW Trustee
(cf PT Act, s 18 (1))
(1) The Supreme Court may grant:(a) probate of a will, or(b) administration of any estate (whether for general, limited or special purposes),to the NSW Trustee.(2) This section does not limit the generality of the powers or other functions of the Supreme Court or the NSW Trustee.Note. Under section 61 of the Probate and Administration Act 1898, a deceased person’s estate vests in the NSW Trustee until probate, administration or an order to collect is granted.
23 Intestacy where no letters of administration
(cf PT Act, s 18 (1A))
(1) The NSW Trustee is, on application, entitled as of right to a grant of administration of the estate of a person who died intestate leaving property in New South Wales if:(a) letters of administration of the deceased person’s estate have not been granted, or(b) letters of administration of the estate granted to a person other than the NSW Trustee are revoked, or(c) a person granted letters of administration of the estate dies without completing administration of the estate.(2) The NSW Trustee is not required to provide, and the Supreme Court may not require the provision of, any citation or consent before administration of the estate of the deceased person is granted.(3) However, if the NSW Trustee and any other person severally apply for the administration of the deceased person’s estate, the Supreme Court may grant administration of the estate to the NSW Trustee or other person, as the Court thinks fit.
24 Transfer of administration of estate to NSW Trustee
(cf PT Act, s 18 (2))
(1) The Supreme Court may make an order transferring an estate to the NSW Trustee for administration, on application by an executor who has been granted probate or an administrator who has been granted administration. This section applies despite the existence of any other executor or administrator.(2) The Supreme Court may, in any such order, determine the extent to which the existing executor or executors or the existing administrator or administrators remain liable for any matters arising after the making of the order.(3) On an order transferring an estate being made, section 75A of the Probate and Administration Act 1898 applies as if the NSW Trustee had been appointed as an administrator under that section.
25 Administration of estates in cases of supposed deaths
(cf PT Act, s 23)
(1) The Supreme Court may order the NSW Trustee to administer the estate of a person if it appears to the Court that there are reasonable grounds to suppose that the person has died intestate (whether in or outside New South Wales) leaving property in New South Wales.(2) If such an order is made, the NSW Trustee may:(a) collect, manage and administer the personal estate of the person, and(b) enter and manage the real estate of the person, including receiving the rents and profits of any such estate, and(c) pay and discharge the debts and liabilities of the person.(3) The NSW Trustee may exercise any such function as if the person were certainly dead and the NSW Trustee had obtained a grant of probate or administration.(4) The NSW Trustee must not distribute any assets of the person’s estate except in accordance with an order of the Supreme Court specially authorising the distribution.(5) Nothing in this section affects the application of sections 40A–40C of the Probate and Administration Act 1898.
Division 1 Elections to administer small estates
26 Election to administer where no previous executor or administrator
(cf PT Act, s 18A (1)–(3))
(1) The NSW Trustee may file an election to administer the estate of a deceased person who died testate or intestate in the registry of the Supreme Court, instead of applying for probate or administration, if:(a) the gross value of the estate in New South Wales, as estimated by the NSW Trustee, is less than the amount prescribed by the regulations for the purposes of this section, and(b) no person has obtained probate of the estate or taken out administration, and(c) the NSW Trustee is entitled to obtain probate or letters of administration of the estate, and(d) the NSW Trustee has made due inquiries as to the will, if the deceased person died testate.(2) An election must be sealed by the NSW Trustee and must set out:(a) the name, residence and occupation (as far as it is known to the NSW Trustee) of the deceased person, and(b) particulars of property forming the deceased person’s estate, and(c) the date of the deceased person’s death as then known to the NSW Trustee, and(d) if the deceased person died testate, state that, after due inquiries, the NSW Trustee believes that the document annexed to the election is the testator’s last will and that the will has been validly executed according to the law governing the execution of wills.(3) On an election being filed, the NSW Trustee is taken to have been appointed by the Supreme Court as the executor of the estate or the administrator of the estate.
27 Election to administer where previous executor or administrator
(cf PT Act, s 18A (3A))
(1) The NSW Trustee may file an election to administer the unadministered estate of a deceased person who died testate or intestate in the registry of the Supreme Court, instead of taking out administration de bonis non, if:(a) the executor or administrator of the estate has died and no other person has taken out administration de bonis non in respect of the estate, and(b) part of the estate is unadministered, and(c) the gross value of the unadministered part of the estate in New South Wales is less than the amount prescribed by the regulations for the purposes of this section, and(d) the NSW Trustee is entitled to take out administration de bonis non.(2) An election must be sealed by the NSW Trustee and must set out:(a) the fact of the original grant, and(b) the fact of the death of the executor or administrator, and(c) particulars of the property left unadministered.(3) On an election being filed, the NSW Trustee is taken to have been appointed by the Supreme Court as the administrator de bonis non of the estate.
(cf PT Act, s 18A (5))
(1) If, after an election takes effect under this Division, the NSW Trustee becomes aware that the gross value of the estate or the unadministered estate exceeds the amount prescribed for the purposes of making an election, the NSW Trustee must file a notice to that effect in the registry of the Supreme Court.(2) The NSW Trustee is not entitled to continue to administer the estate under this Division but must obtain probate or administration in the ordinary manner.
(cf PT Act, s 18A (5A))
(1) If, after an election takes effect under this Division, a later will, or a will, is found, the NSW Trustee must file a notice to that effect in the registry of the Supreme Court.(2) On filing the notice, the NSW Trustee ceases to be the executor or administrator of the estate and may, if it is otherwise entitled to do so, obtain probate or administration in the ordinary manner or make a new election under this Division.(3) If the NSW Trustee does not obtain probate or letters of administration or make a new election under this Division, the Probate and Administration Act 1898 applies as if a grant of probate or administration to the NSW Trustee had been revoked.Note. See section 40D of the Probate and Administration Act 1898.
(1) The NSW Trustee must publish, in accordance with the regulations, notice of an election made by, or a notice filed by, the NSW Trustee under this Division.(2) A notice under this Division is to be in the form (if any) prescribed by the regulations and to contain the particulars prescribed by the regulations.(3) A notice that complies with this section is conclusive evidence that the NSW Trustee is entitled to administer an estate under this Division.
Division 2 Small estates for which probate or administration not required
31 No probate or administration required
(cf PT Act, s 34A)
(1) This section applies to the estate of a deceased person who died testate or intestate if:(a) the net value of the estate in New South Wales is less than the amount prescribed by the regulations for the purposes of this section, and(b) the NSW Trustee has no knowledge of any application having been lodged for probate of the will or for the administration of the estate, and(c) the NSW Trustee has given notice in accordance with the regulations of its intention to act under this section.(2) The NSW Trustee may deal with the estate as if probate of the will of the deceased person or administration of the estate had been granted to the NSW Trustee.(3) The NSW Trustee is entitled to the same commission as it would be entitled to if the NSW Trustee had been granted probate or administration of the estate. The commission is a first charge on the estate.(4) The NSW Trustee must deposit any will of a deceased person with an estate to which this section applies in accordance with section 51 of the Succession Act 2006.
32 NSW Trustee not required to file accounts
(cf PT Act, s 35A)
(1) The NSW Trustee, when acting alone in relation to any estate, is not required to file or pass accounts relating to the estate unless the Supreme Court, on the application by or on behalf of a person interested in the estate, so orders.(2) The NSW Trustee, when appointed and acting jointly with any other person in relation to any estate, is not required to file or pass accounts relating to the estate unless:(a) the other person wishes to claim commission for his or her pains and trouble, or(b) the Supreme Court, on application by or on behalf of a person interested in the estate, so orders.
(cf PT Act, ss 43A and 43B)
(1) The NSW Trustee is entitled to the NSW Trustee’s costs out of an estate for any application by the NSW Trustee for probate of any will or for administration with a will annexed.(2) The NSW Trustee is entitled to the NSW Trustee’s costs out of an estate if the NSW Trustee applies for administration at the request of one or more beneficiaries of a deceased estate who cannot agree as to the person to be appointed administrator, whether or not the NSW Trustee is appointed administrator.(3) The NSW Trustee is not liable for the costs of any other person in respect of an application or estate referred to in subsection (1) or (2).
34 Proceeds of sale of goods of third person
(cf PT Act, s 47)
(1) If the NSW Trustee disposes of goods of a person other than a person for whom the NSW Trustee is acting in a trust capacity, the NSW Trustee must pay the proceeds of any such sale to the person on proof of ownership.(2) The NSW Trustee is not liable to pay the proceeds of the sale to any such person if the proceeds have, in good faith and without notice of the person’s interest in the goods, been applied to the debts of the deceased person or in the course of the distribution or administration of the estate of the deceased person.
35 Reciprocal arrangements for intestacy
(cf PT Act, ss 55 and 56)
(1) In this section:Public Trustee of a reciprocating State means a person or body that exercises functions equivalent to the trust capacities of the NSW Trustee in the reciprocating State.
reciprocating State means:
(a) any other State or a Territory of Australia, or(b) any country prescribed by the regulations as a reciprocating State for the purposes of this section.(2) The NSW Trustee may pay to the Public Trustee of a reciprocating State the proceeds of an estate of a person for which the NSW Trustee is acting as collector of the estate, after payment of creditors and any costs under this Act, if:(a) the person was domiciled in the reciprocating State when the person died, and(b) the Public Trustee of the reciprocating State is the administrator of the estate or is the collector of the estate in the reciprocating State.(3) The NSW Trustee:(a) is not required to see to the application of, and is not liable in respect of, any money paid to the Public Trustee of a reciprocating State under this section, and(b) is not liable for any act or omission of the Public Trustee of a reciprocating State in the exercise of functions referred to in this section.(4) The NSW Trustee may receive from the Public Trustee of a reciprocating State the proceeds of the estate of a person in the reciprocating State that is being administered by that Public Trustee or for which that Public Trustee is acting as the collector of the estate if:(a) the person was domiciled in this State when the person died, and(b) the NSW Trustee is the administrator of the person’s estate.(5) The proceeds of an estate received by the NSW Trustee under this section form part of the estate of the deceased person and are to be dealt with in accordance with the law of this State.
36 Appointment of other persons to conduct business of estate
(cf PT Act, s 57)
(1) This section applies to an estate of a deceased person if the NSW Trustee is acting in a trust capacity and the testator or settler has directed in a trust instrument that a specified person is to conduct the legal or other business of the estate.(2) The specified person is entitled to conduct the legal or other business of the estate in accordance with the direction.(3) The NSW Trustee is not liable for any act or omission of the specified person in conducting the legal or other business of the estate.(4) The Supreme Court may, on application by the NSW Trustee, or any other person interested in the estate, on cause being shown, direct that the specified person is not to conduct the legal or other business of the estate and may appoint any other person to conduct the business concerned.
37 Disclosure of property to NSW Trustee
(cf PT Act, s 54)
An association, corporation or other person must, on or as soon as is reasonably practicable after becoming aware of the vesting of the estate of a deceased person in the NSW Trustee, notify the NSW Trustee of the following matters:(a) any property of the deceased person that is in the possession of the association, corporation or other person,(b) any amount owed to the deceased person by the association, corporation or other person,(c) any share of the deceased person in the assets of a partnership,(d) in the case of a corporation, any shares held by the deceased person in the corporation,(e) in the case of an association, any entitlement of the deceased person to the assets of the association.Maximum penalty: 10 penalty units.