Public Trustee Regulations 2009
I, the Governor in and over the State of Tasmania and its Dependencies in the Commonwealth of Australia, acting with the advice of the Executive Council, make the following regulations under the Public Trustee Act 1930 .
14 December 2009PETER G. UNDERWOOD
Governor
By His Excellency's Command,
LARA GIDDINGS
Minister for Justice
These regulations may be cited as the Public Trustee Regulations 2009 .
These regulations take effect on 22 December 2009.
(1) In these regulations –Act means the Public Trustee Act 1930 ;GST means the goods and services tax as defined in the A New Tax System (Goods and Services Tax) Act 1999 of the Commonwealth;property includes real and personal property.(2) Property is taken to be in the hands of the Public Trustee if the Public Trustee is authorised to administer or deal with that property.
4. Attestation of mark in place of signature
(1) Money payable to a person who is unable to sign his or her name is only to be paid to that person on a receipt –(a) purporting to bear the mark of that person; and(b) attested by an adult person, other than the paying officer.(2) An attestation is to state that the receipt was read out and explained to the person making his or her mark.(3) It is not necessary for the Public Trustee, unless it thinks it proper, to inquire whether a person attesting a mark is an adult.(4) A receipt is taken to be validly attested even if a person attesting a mark is found at a later time not to have been an adult at the time of attestation.
5. Remuneration of advisory trustees
(1) Advisory trustees, subject to the provisions of the relevant trust instrument, are to be remunerated at a rate –(a) determined by the Public Trustee with the agreement of the trustees; and(b) not exceeding 2% of the gross capital of the estate of which they are advisory trustees.(2) The remuneration referred to in subregulation (1) does not include any GST payable in respect of that matter.
6. Maximum fees, commissions, remunerations and charges
(1) In this regulation –specified charges means the fees, commissions, remunerations and charges specified in Schedule 1 .(2) The specified charges are the maximum amount (exclusive of GST) that the Public Trustee may receive in respect of any matter specified in Schedule 1 .(3) The Public Trustee may deduct the specified charges from money representing –(a) capital or income; or(b) both capital and income.(4) In calculating the specified charges, a deduction is not to be made for –(a) legal or equitable charges on property; or(b) the expenses of a realisation.(5) If a deceased person has, during the deceased person's lifetime, used the proceeds of a life policy as security for an advance from the insurer, specified charges are payable only on the net amount received as the proceeds of the policy.(6) In addition to the specified charges, the Public Trustee is entitled to reimbursement for any expense incurred in respect of –(a) an estate or matter; and(b) an estate for which representation is not obtained.
7. Notice under section 17 of Act
A notice under section 17 of the Act is to be in accordance with Form 1 of Schedule 2 .
8. Prescribed amounts for purposes of certain sections of Act
(1) [Regulation 8 Subregulation (1) amended by S.R. 2016, No. 78, Applied:27 Sep 2016] For the purpose of section 20(1) of the Act, the prescribed amount is $80 000.(2) [Regulation 8 Subregulation (2) amended by S.R. 2016, No. 78, Applied:27 Sep 2016] For the purpose of section 20(4)(a) of the Act, the prescribed amount is $85 000.(3) [Regulation 8 Subregulation (3) amended by S.R. 2016, No. 78, Applied:27 Sep 2016] For the purpose of section 20A(1) of the Act, the prescribed amount is $30 000.(4) [Regulation 8 Subregulation (4) amended by S.R. 2016, No. 78, Applied:27 Sep 2016] For the purpose of section 20A(5) of the Act, the prescribed amount is $35 000.(5) For the purpose of section 32(1)(y) of the Act, the prescribed amount is $20 000.(6) For the purpose of section 34(1)(b) of the Act, the prescribed amount is $20 000.(7) For the purpose of section 56(c) of the Act, the prescribed amount is $20 000.(8) For the purpose of section 63(1) of the Act, the prescribed amount is $20 000.(9) For the purpose of section 74(1) of the Act, the prescribed amount is $60 000.
SCHEDULE 1 - Maximum fees, commissions, remunerations and charges payable to Public Trustee
PART 1 - Interpretation
1. In this Schedule, a reference to a percentage is a reference to an amount equal to that percentage of the assets, income, fund, money or the whole of the estate as indicated in the context.
PART 2 - Charges on capital
Division 1 - Estate of deceased persons
1. –(a) Except as provided in item 2 , on the gross capital of an estate in respect of which the Public Trustee's charges are not provided for in this Schedule, if the Public Trustee is, or is taken to be, the executor or administrator –(i) 4% on the first $100 000 or part of that amount; and(ii) 3% on the next $200 000 or part of that amount; and(iii) 2% on the next $200 000 or part of that amount; and(iv) 1% on the excess over $500 000.(b) On the value as determined by the Public Trustee of an interest of the deceased person in the principal matrimonial home, and the household furniture and household effects in that home, that are transferred or conveyed to the surviving spouse, 2%.
2. On the gross value of all assets situated outside Tasmania and comprised in an estate of which the Public Trustee is the principal executor or administrator, if the Public Trustee's grant in respect of those assets is required to be resealed in another State or a Territory of the Commonwealth, 2%.
3. If an application of the rates specified in item 1 or 2 results in a commission of less than $300 –(a) those rates do not apply; and(b) the maximum commission is $300.
Division 2 - Trusts
4. On the gross capital in the case of a deed of trust or of a settlement, ante-nuptial or otherwise, 2%.
5. On each amount received by the Public Trustee under section 16 of the Act, 3%.
6. On the gross value of assets in respect of which the Public Trustee is custodian trustee –(a) on the first $50 000 or part of that amount, 0.5%; and(b) in excess of $50 000, 0.25%.
7. On the realisation of assets in respect of which the Public Trustee is custodian trustee, an additional fee or charge as specified by the Public Trustee, having regard to the complexity and responsibility of the work involved.
Division 3 - Miscellaneous
8. –(a) On money received as compensation or damages under an Act or court order which is immediately payable to, or for the benefit of, the person entitled, the maximum commission payable is to be $150.(b) On money to be held or administered in terms of a court order or otherwise –(i) 2.5% on the first $100 000 or part of that amount; and(ii) 2% on the next $400 000 or part of that amount; and(iii) 1% on the excess over $500 000; and(iv) any other or additional fee or charge as determined by the Public Trustee, taking into account the complexity and responsibility of the work involved.(c) If an application of the rates specified in paragraph (b) results in a commission of less than $100 –(i) those rates do not apply; and(ii) the maximum commission is $100.
9. On the gross capital of an estate administered and realised under the Guardianship and Administration Act 1995 , an establishment fee not exceeding $500 and a commission of –(a) 4% on the first $100 000 or part of that amount; and(b) 3% on the next $200 000 or part of that amount; and(c) 2% on the next $200 000 or part of that amount; and(d) 1% on the excess over $500 000.
10. On the gross value of property that is the whole or a part of an estate administered under the Guardianship and Administration Act 1995 which is not realised but is transferred to the person entitled or to his or her personal representative on the termination of the Public Trustee's administration, 2%.
11. On money paid to the Public Trustee at the discretion of trustees or managers of a superannuation, retirement or provident fund or other similar scheme for administration on behalf of the beneficiaries, 3%.
12. If proceeds collected on a policy of insurance in respect of damage to property or loss by fire or otherwise are retained and administered by the Public Trustee –(a) 4% on the first $100 000 or part of that amount; and(b) 3% on the next $200 000 or part of that amount; and(c) 2% on the next $200 000 or part of that amount; and(d) 1% on the excess over $500 000.
13. If commission was charged in respect of a property so affected, an amount equal to the difference between that commission and the commission referred to in paragraph (a), (b) or (c) of item 12 .
14. If the proceeds collected on a policy of insurance are expended in replacing or repairing the property, an additional charge of 2%.
15. On book debts collected by the Public Trustee, 6% or, if the debts are subject to an authorised charge for collection, 3%.
PART 3 - Charges on income
1. In this Part –gross income includes –(a) capital gain realised, reduced by the capital loss suffered arising from an investment in the common fund or another common investment fund maintained by the Public Trustee; and(b) the gross income derived from a business carried on by the Public Trustee.
2. Subject to items 3 and 4 , on gross income received by the Public Trustee including interest paid in respect of an account at credit in the common fund or another common investment fund maintained by the Public Trustee, 6%.
3. On gross income received by the Public Trustee that is subject to an authorised charge for collection, 3%.
4. On a Commonwealth pension or superannuation pension paid to the Public Trustee, 6%.
PART 4 - Particular charges
1. On the capital or income of an estate realised by a former executor, administrator, trustee or person acting in a fiduciary capacity subsequently vested in the Public Trustee, 2%.
2. If the assets of an estate or matter are administered or dealt with by the Public Trustee in more than one capacity, or an asset consists of a share in another estate administered by the Public Trustee, the fee or charge payable in respect of the second or subsequent administration of those assets is 2%.
3. On capital received by the Public Trustee as attorney or agent or on property dealt with by the Public Trustee in any way in that capacity, except if a special rate or fee is agreed with the principal, an establishment fee of $300 and in addition a commission of –(a) 4% on the first $100 000 or part of that amount; and(b) 3% on the next $200 000 or part of that amount; and(c) 2% on the next $200 000 or part of that amount; and(d) 1% on the excess over $500 000.
4. For a service, matter or performance of a duty or function by the Public Trustee pursuant to an Act or order of a court or as otherwise required by law, if no fee or charge is specified in this Schedule or is otherwise determined, a charge as agreed or, in the absence of agreement, as the Public Trustee determines.
PART 5 - Additional charges
1. In addition to the charges on capital and income provided by Parts 2 , 3 and 4 , the Public Trustee may make further charges as follows:(a) charges prescribed or permitted by rules or orders made under the Administration and Probate Act 1935 , or under any other Act, for work in respect of a testate, or intestate, estate if –(i) the work is performed by an Australian lawyer, or an Australian legal practitioner, who is an employee of the Public Trustee; and(ii) the net value of the estate –(A) exceeds $2 000; or(B) does not exceed $2 000 but the Public Trustee determines that the work involves a sufficient degree of complexity and responsibility;(b) despite other fees, charges or remuneration specified in this Schedule, for the preparation of a return in respect of an estate duty, death duties, gift duty or similar duties or income tax, an hourly fee that the Public Trustee may determine;(c) a fee the Public Trustee may determine, taking into account the complexity and responsibility of the work involved, for services rendered by the Public Trustee in respect of an estate for –(i) tracing missing beneficiaries or next of kin; or(ii) the attempted realisation of assets at the request of beneficiaries, if the assets are transferred or delivered in specie to the beneficiaries; or(iii) the carrying on of a business pending realisation; or(iv) services in connection with elections and notional estate; or(v) work in respect of the management, inspection, improvement, arranging for repairs and other similar work performed by or on behalf of the Public Trustee in each year or part of a year in relation to land (whether freehold, leasehold or otherwise); or(vi) any work not specified in this Schedule;(d) subject to an order of a court or a judge, for each consent to act as guardian ad litem or for acting as a nominal party in a legal proceeding, a fee that the Public Trustee may determine taking into account the complexity and responsibility of the work involved;(e) if the Public Trustee administers an estate, trust or fund, the Public Trustee may charge an hourly or other fee determined by the Public Trustee in respect of work for which the fee or commission otherwise provided for in this Schedule is insufficient to cover costs incurred by the Public Trustee;(f) for all work performed in an estate or matter for which no other fee or charge is specified in this Schedule, a fee that the Public Trustee may determine, taking into account the complexity and responsibility of the work involved.
2. Despite item 1 , in respect of work performed by an Australian lawyer, or an Australian legal practitioner, employed by the Public Trustee as an employee for obtaining a grant of probate or administration or for resealing a grant, the fees payable are the fees the Public Trustee may determine, either generally or in a particular case.
PART 6 - Investment management fees
1. On the gross value of assets of the common fund or another common investment fund maintained by the Public Trustee –(a) in the case of a mortgage investment, 2% per year; or(b) in any other case, 1% per year.
2. On assets invested by the Public Trustee in any capacity except as executor or administrator of a deceased estate, a management fee on the gross value of the capital of –(a) in the case of a mortgage investment, 2% per year; or(b) in any other investment, 1% per year.
SCHEDULE 2 - Forms
Form 1
Displayed and numbered in accordance with the Rules Publication Act 1953.
Notified in the Gazette on 21 December 2009
These regulations are administered in the Department of Justice.