Public Trustee Act 1978 – 22 March 2016
Public Trustee Act 1978 – 22 March 2016
Public Trustee Regulation 2012 – 1 November 2016
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There is a Public Trustee of Queensland. Where any person or corporation may be appointed or act as a trustee, executor, administrator, next friend, guardian, committee, agent, attorney, liquidator, receiver, manager or director or to or in any other office of a fiduciary nature the public trustee may be so appointed or may so act. Where a person has died, the powers exercisable by the public trustee (regardless of appointment) are set out in section 36 of the Act. Where the public trustee is acting as a trustee, the powers exercisable by the public trustee are set out in sections 48, 49, 50, 51 and 54 of the Act.
- Sections 7, 8, 16, 17, 17B, 19, 27, 27A, 36, 40, 42, 47, 48, 49, 50, 51, 52, 53, 54, 107, 108, 109, 119, 120, 122, 130, 134, 141; Regulation 4, Schedule 1
There may be an official solicitor to the public trustee, who shall be a barrister or solicitor of the Supreme Court. The official solicitor shall be entitled to act as solicitor in any court or in any proceedings under the title of ‘official solicitor to the public trustee’ without the necessity of showing the official solicitor’s own personal name. For the definition of ‘proceedings’, refer to section 6 of the Act.
- Sections 6, 16
The public trustee may invest moneys belonging to an estate under administration in any investment which is authorised by the provisions of a governing trust instrument and, subject to the provisions of any such trust instrument, retain in the form in which it then is any investment existing when the trust becomes vested in the public trustee. For the definition of ‘estate under administration’, refer to section 6 of the Act.
- Sections 6, 19
Where a person entitled to a share in an estate under administration desires an advance against the person’s share, the public trustee may make advances to that person not exceeding in the whole one-half of the value of the share as estimated by the public trustee. Note: All amounts owing in respect of sums so advanced, with all interest, shall bear interest compounded quarterly.
- Section 20
Where any person has died and there is a relevant connection to Queensland and a grant of administration (defined in section 6 of the Act) has not been made, the public trustee may apply for and be granted an order to administer the estate of such person. For the full circumstances of where an application can be so made, refer to section 29 of the Act. A number of important circumstances include where the deceased died intestate (that is, without leaving a will) and where the deceased died with a will but there is no executor willing and capable of acting in the execution of the will resident in Queensland or where the executors appointed have renounced or where no person has applied for probate or letters of administration with the will annexed within a period of 3 months from the death of the deceased. Note: The public trustee shall in most instances be entitled to the public trustee’s costs out of the estate. Where any person dies domiciled in Queensland or leaving property situated in Queensland, and the gross value of the person’s property in Queensland which would pass to the person’s personal representative is estimated by the public trustee not to exceed $150 000, and there is no grant of administration in force in Queensland, the public trustee may, in all cases where the public trustee is entitled to obtain an order to administer, in lieu file in the Supreme Court an election to administer the estate with the will or on intestacy as may be the case. Note: An election is not required for the administration of small estates by the public trustee pursuant to section 35 of the Act. For the definitions of ‘property’ and ‘personal representative’, refer to section 6 of the Act.
- Sections 6, 17A, 29, 30, 31, 32, 33, 34, 35, 37, 38, 39, 41, 46, 88, 121, 129, 131, 132; Regulation 6
A trustee may, with the consent of the public trustee, pay any moneys or transfer any investment held by the trustee on trust for any infant, whether the interest of the infant be vested or contingent, to the public trustee and by writing direct the public trustee to hold such moneys or investments and account according to law.
- Section 43
A trustee who is holding any moneys or investment, not exceeding in the aggregate, in the opinion of the public trustee, $75 000 in value, for any person (other than an infant) who, in the opinion of the public trustee is incapable of giving a discharge or whose whereabouts or whether the person is alive or dead are unknown to such trustee may, with the consent of the public trustee, pay such moneys or transfer such investment to the public trustee and furnish the appropriate written direction.
- Section 43
If any amount of money becomes payable to any person under a legal disability (whether such person is entitled absolutely or is a beneficiary under a discretionary trust for the person’s benefit or the benefit of a number of persons) by the government or any person or instrumentality representing the government or out of any fund or money, including any provident, superannuation, or benefit fund, by any person or body who or which has control of such fund or moneys, such amount may be paid to the public trustee. Upon receipt, the public trustee shall hold the money on trust for the person under a legal disability.
- Sections 6, 44
Moneys (whether invested or not) in or belonging to any fund raised for the benefit or relief of any person or class of persons, may be paid or transferred to the public trustee to be administered by the public trustee.
- Section 45
The public trustee may, if the public trustee considers it desirable to do so, require that the will of any deceased person be proved in solemn form of law.
- Section 57
The public trustee may, by deed or will or by the court (whether on the application of the public trustee or of any other person), be appointed to be a guardian of an infant under any law in force for the time being relating to the guardianship and custody of infants.
- Section 58
No settlement or compromise or acceptance of money paid into court, whether before, at or after the trial, shall, as regards the claim of such person under a legal disability, be valid without the sanction of a court or the public trustee. In addition, money or damages recovered or awarded to a person under a legal disability is, in the absence of a contrary direction of the court, to be paid to the public trustee. Note: A similar rule applies to settlement or compromise out of court before an action is brought (except that payment may be made to an appropriate person for the person under a legal disability).
- Section 59
Any person may make a request in writing to the public trustee for an investigation and audit of the condition and accounts of a trust. Note: Security for costs and expenses of the investigation and audit is a pre-requisite to auditor appointment.
- Section 60
The public trustee may discharge a mortgage where the mortgagee of property is absent from Queensland; cannot be found, etc. For the full list of circumstances where a discharge may be granted by the public trustee, refer to section 61 of the Act.
- Section 61
In certain circumstances prescribed by section 62 of the Act, the public trustee may execute a transfer on behalf of an owner of land.
- Section 62
A person may deposit a trust instrument with the public trustee for safe custody.
- Sections 7, 63
A testator may deposit the testator’s will with the public trustee for safe custody, and, after the death of the testator, the public trustee shall deliver the will to such person as the testator may have directed in writing, or, in the absence of such direction, to such person as the public trustee thinks proper.
- Sections 7, 63
The public trustee may accept for safe custody: debentures or other interest-bearing securities for money, and other documents.
- Section 63
The public trustee (and any other person with a proper interest) may apply to the court for a protection order appointing the public trustee to take possession of and to control and manage the estate of a person who is under 18 years where that person is unable to manage their affairs, etc or their estate is otherwise in need of protection. Note: A protection order for a person ends when the person attains 18 years.
- Sections 65, 66, 67, 68, 69, 75
When the public trustee becomes manager of the estate of an incapacitated person, the public trustee shall be entitled to the possession and management of the estate and deemed to be a trustee and have power and authority in relation to rights of a property nature. Note: Property may be applied for the maintenance or benefit of the incapacitated person and other persons where there is an expectation of provision. Powers extend to taking proceedings to recover any legacy or distributive balance in the estate of a deceased person to which the incapacitated person is entitled.
- Sections 80, 81, 82, 84, 86, 88, 89
No incapacitated person shall be capable, without the leave of the court, of making any transfer, lease, mortgage, or other disposition of the estate under management, or of entering into any contract (other than for necessaries) affecting the same and every such transfer, lease, mortgage or other disposition or contract, made without such leave, shall be voidable by that incapacitated person or by the public trustee on the incapacitated person’s behalf.
- Section 83
The public trustee shall, without further or other order or authority, be the manager of the estate of every prisoner (for which section 90 of the Act specifies). When the public trustee is manager of the estate of a prisoner, the public trustee shall have full power to deal with any property of the prisoner and to acquire any property for or on behalf of the prisoner and generally may do all such things in relation to property, on behalf of and in the name of the prisoner, as the prisoner could do if the prisoner were not a prisoner. Note: During the time when the public trustee is manager of the prisoner’s estate, a prisoner shall be incapable, except with the consent in writing of the public trustee, to charge any property or to make any contract (among other things).
- Sections 90, 91, 92, 93, 94, 95, 97
Notice in writing of any appointment of the public trustee as trustee shall, as soon as possible after the trust comes into effect, be given to the public trustee by: (a) any person having possession of the trust instrument or any of the trust property; or (b) any person appointed by a testator to be co-trustee with the public trustee and not renouncing or disclaiming the trust.
- Section 118
Where a person obtains a court order under this Act or having any relation to the public trustee, the public trustee is to be served with a copy of the order and shall deliver a statement of the property affected by the order, where that property is situated and by whom it is held, so far as the same is known to that person, and such other information as the public trustee requires.
- Section 118
The entry of the public trustee (by that name) in a register of members of a company or other register of ownership shall not constitute notice of the existence of a trust.
- Section 126
The public trustee must, at times the public trustee considers appropriate, prepare an account for every estate, trust or matter that is with the public trustee. Note: An interested person may request accounts on payment of a fee.
- Sections 7, 142; Regulation 10
Transfers, mortgages, leases, agreements and other documents executed by the public trustee must be executed in a way showing the appointment or authority under which the public trustee acts.
- Section 142; Regulation 12
Reason for law
Highlighted practice direction
Sections 4, 21, 28, 44, 48, 62, 98, 103, 123 and 138 contain the term ‘Crown’. This term may be replaced with a modern alternative.
Sections 28, 97 and 123 contain the phrase ‘Her Majesty’. This phrase may be replaced with a modern alternative.
Sections 29 and 57 contain the phrase ‘will in solemn form of law’. This phrase may not be understood by members of the public.
Section 36 contains the phrase ‘executor de son tort’. This phrase may not be understood by members of the public.
Sections 48 contains the term ‘escheat’. This term may not be understood by members of the public.
Section 48 contains the phrase ‘bona vacantia’. This phrase may not be understood by members of the public.
Sections 57, 104 and 122 contain the phrase ‘ex parte’. This phrase may not be understood by members of the public.
Section 80 contains the phrase ‘cestui que trust’. This phrase may not be understood by members of the public.
Section 135 contains the phrase ‘bona fide’. This phrase may not be understood by members of the public.
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