Administration and Probate Act 1929 (ACT)
Administration and Probate Act 1929
A1929-18
Republication No 29
Effective: 12 December 2023
Republication date: 12 December 2023
Last amendment made by A2023‑57
About this republication
The republished law
This is a republication of the Administration and Probate Act 1929 (including any amendment made under the Legislation Act 2001, part 11.3 (Editorial changes)) as in force on 12 December 2023. It also includes any commencement, amendment, repeal or expiry affecting this republished law to 12 December 2023.
The legislation history and amendment history of the republished law are set out in endnotes 3 and 4.
Kinds of republications
The Parliamentary Counsel’s Office prepares 2 kinds of republications of ACT laws (see the ACT legislation register at type="disc">
authorised republications to which the Legislation Act 2001 applies
unauthorised republications.
The status of this republication appears on the bottom of each page.
Editorial changes
The Legislation Act 2001, part 11.3 authorises the Parliamentary Counsel to make editorial amendments and other changes of a formal nature when preparing a law for republication. Editorial changes do not change the effect of the law, but have effect as if they had been made by an Act commencing on the republication date (see Legislation Act 2001, s 115 and s 117). The changes are made if the Parliamentary Counsel considers they are desirable to bring the law into line, or more closely into line, with current legislative drafting practice.
This republication includes amendments made under part 11.3 (see endnote 1).
Uncommenced provisions and amendments
If a provision of the republished law has not commenced, the symbol U appears immediately before the provision heading. Any uncommenced amendments that affect this republished law are accessible on the ACT legislation register ( For more information, see the home page for this law on the register.
Modifications
If a provision of the republished law is affected by a current modification, the symbol M appears immediately before the provision heading. The text of the modifying provision appears in the endnotes. For the legal status of modifications, see the Legislation Act 2001, section 95.
Penalties
At the republication date, the value of a penalty unit for an offence against this law is $160 for an individual and $810 for a corporation (see Legislation Act 2001, s 133).
Administration and Probate Act 1929
Contents
Page
Part 1 Preliminary
1 Name of Act 2
2 Dictionary 2
3 Notes 2
Part 3 Grant of representation
Division 3.1 Jurisdiction of the Supreme Court
8C Supreme Court to make finding about domicile of deceased person 3
9 Probate or administration may be granted 3
9A Evidence of death 4
9B Grant on presumption of death 4
9C Evidentiary effect of probate and letters of administration 6
10B Grant to single executor reserving leave to others to apply 7
10C Grant of probate to public trustee and guardian etc 7
11 Practice about granting administration of real and personal estate 7
12 Eligible administrators 7
13 Rights and duties of administrator 8
20 Renunciation or non-appearance by executor 9
20A Renunciation etc by person appointed both executor and trustee of will 10
21 Administration to guardian of child sole executor 10
22 Administration under power of attorney 11
23 Administration pendente lite and receiver 11
24 Power to appoint administrator 11
25 Failure of executor to prove will 12
26 Issue of special letters of administration 12
27 Special administrator to make certain affidavits 13
28 On return of original executor or administrator special administration to be revoked 13
29 Accounting by special administrator 13
30 Liability of executor or administrator neglecting to apply for revocation of special administration 14
31 Revocation of grants not to prejudice actions or suits 14
32 Discharge or removal of executors and administrators 14
32A Revocation of grant if person living at date of grant 16
32B Effect of revocation of grant 17
Division 3.3 Effect of grant of representation
38A Estate to vest in public trustee and guardian until grant 18
39 Real and personal estate to vest in executor or administrator 19
40 Real estate held in trust 19
41 Property of deceased to be assets 20
41A Property of deceased liable for debts 20
41B Appointments by will under general power 21
41C Administration of assets 21
41D Application of income of settled residuary estate 21
42 Real estate to be held on trusts of will 23
43 Rights of executor in relation to real estate 23
Division 3.4 Position of executor of an executor
43A Executor of executor 24
43B When ceases to represent deceased 25
43C Rights and liabilities of executor of executor 25
Part 3A Intestacy
Division 3A.1 Preliminary
44 Interpretation for pt 3A 26
Division 3A.2 Distribution on intestacy
44A Whole blood or half-blood relationships 27
45 Executor or administrator to hold property of intestate on trust for persons entitled 27
45A Distribution between spouse, civil union partner or civil partner and eligible partner 28
46 Entitlement of children 28
48 Estate by courtesy or right of dower not to arise 28
49 Distribution of intestate estate 29
49A Interest of partner on intestacy in personal chattels 30
49AA Immovable property if intestate domiciled elsewhere 30
49B How distribution to issue is made 31
49BA Gifts made before death of intestate 32
49C How distribution to next of kin is made 34
49CA How distribution to the Territory is made 35
49D Partial intestacies 36
49DA Effect of disclaimer or forfeiture 37
49E Presumptions of parentage 37
Division 3A.3 Rights of partners to intestate dwelling houses
49F Definitions for div 3A.3 38
49G Claim by partner to dwelling house 38
49H Valuation 39
49J Right not exercisable for certain tenancies 40
49K Right not exercisable in certain other cases 40
49L Personal representative not to sell or dispose of interest without consent 41
49M Rule that trustee not to purchase trust property 41
49N If surviving partner is under legal disability 42
Part 3B Simultaneous deaths
49P Simultaneous deaths—devolution of property generally 43
49Q Simultaneous deaths—devolution of jointly owned property 43
Part 3C Functions of executors and administrators
50 Powers of executors and administrators to sell, mortgage or lease real estate 44
51 Supreme Court may make special order 45
51A Supreme Court may authorise postponement of realisation and carrying on of business 46
52 Supreme Court may order partition in summary way 46
53 Personal representative not required to continue to act against own consent 47
54 In suits executor or administrator to represent real estate 48
55 All debts to stand in equal degree 48
55A Interest on legacies 48
56 Executor may sign acknowledgment instead of conveyance 49
57 Summary application for legacy etc 49
58 Examination and passing of accounts etc 50
61 Supreme Court may make order about disposal of money in hands of executor etc 51
62 Payments under revoked probates or administrations valid 51
63 Persons etc making payments on probate granted for estate of deceased person to be indemnified 51
64 Notice before distribution of assets 52
65 Claims barred against executor or administrator in certain cases 53
66 Distribution of estate by executors and administrators 53
67 Right to follow assets 54
68 Executors may compound etc 54
69 Every executor etc taken to be resident in ACT 55
70 Executors etc may be allowed commission 55
Part 3D Liability of certain persons in relation to deceased estates
74A Fraudulently obtaining or keeping property 56
74B Persons liable for waste of deceased estate 57
Part 5 Recognition of foreign grants
79A Orders to collect and administer estates for pt 5 58
79B Inclusion of orders to collect and Scottish confirmation 58
80 Reseal of grant made in reciprocating jurisdiction 58
80B Supreme Court may require security 59
80C Effect of sealing 59
Part 6 Public trustee and guardian
87B Estates valued at $30 000 or less 61
87C Estates valued at $150 000 or less 62
88 Orders to public trustee and guardian to collect and administer 64
89 Effect of order 66
90 Grant of probate or administration despite appointment of public trustee and guardian 66
91 Cessation of rights and liabilities of public trustee and guardian 67
92 Order to public trustee and guardian to collect and administer in special circumstances 68
93 Notice of order to be published 69
95 Supreme Court orders against public trustee and guardian 69
96 Orders on complaints under s 95 70
97 Public trustee and guardian to act as Supreme Court directs 70
97A Public trustee and guardian may obtain directions of Supreme Court 70
98 Proceedings for estates administered by the public trustee and guardian 71
101 Accounts to be kept etc 71
102 Receipt of public trustee and guardian sufficient discharge 71
Part 9 Miscellaneous
126 People entitled to inspect will of deceased person 72
127 Person fraudulently disposing of will liable for damages 73
128 Application of amendments made by Administration and Probate (Amendment) Act 1996 73
129 Regulation-making power 74
Schedule 4 75
Part 4.1 Order of application of assets if estate solvent 75
Part 4.2 Rules about payment of debts and liabilities if estate insolvent 76
Schedule 6 Distribution of intestate estate on intestacy 77
Part 6.1 Distribution of estate if intestate survived by partner 77
Part 6.2 Distribution of estate if intestate not survived by partner 79
Dictionary80
Endnotes
1 About the endnotes 83
2 Abbreviation key 83
3 Legislation history 84
4 Amendment history 94
5 Earlier republications 116
Administration and Probate Act 1929
An Act relating to the administration of the estates of deceased persons
Part 1Preliminary
Name of Act
This Act is the Administration and Probate Act 1929.
Dictionary
The dictionary at the end of this Act is part of this Act.
Note 1The dictionary at the end of this Act defines certain terms used in this Act.
Note 2A definition in the dictionary applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).
Notes
A note included in this Act is explanatory and is not part of this Act.
NoteSee the Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.
Part 3Grant of representation
Division 3.1 Jurisdiction of the Supreme Court
8CSupreme Court to make finding about domicile of deceased person
On an application made under this Act—
(a)for the grant of probate of the will, or administration of the estate, of a deceased person; or
(b)to have probate of the will, administration of the estate, or an order to collect and administer the estate, of a deceased person granted by a court of competent jurisdiction in a State or other Territory sealed with the seal of the Supreme Court; or
(c)by the public trustee and guardian for an order to collect and administer the estate of a deceased person;
the Supreme Court must not grant the relief sought unless it has made a finding about the domicile of the deceased person at the time of death.
Probate or administration may be granted
(1)The Supreme Court has jurisdiction to grant probate of the will or administration of the estate of any deceased person leaving property, whether real or personal, within the ACT.
(2)The Supreme Court has jurisdiction to grant probate of the will, or administration of the estate, of a deceased person who did not leave property, whether real or personal, within the ACT, if the court is satisfied that the grant of probate or administration is necessary.
9AEvidence of death
(1)Probate of the will, or administration of the estate, of a person may be granted by the Supreme Court if it is satisfied, by direct evidence or by evidence supporting a presumption of death, that the person is, or may be presumed to be, dead.
(2)A grant of probate of the will, or administration of the estate, of a person made on direct evidence of the death of the person or on evidence supporting a presumption of the death of the person is valid even if the person is, after the day the grant was made, found to have been alive on that day.
9BGrant on presumption of death
(1)If the Supreme Court makes a grant of probate of the will, or administration of the estate, of a person on evidence supporting a presumption of the death of the person—
(a)the grant must be expressed to be made on presumption of the death of the person; and
(b)the estate of the person must not be distributed without the leave of the court; and
(c)the court may, in the probate or administration or by an order made at any time, give leave to distribute the estate; and
(d)the court may, in giving leave to distribute the estate of the person, direct that the distribution must not be made unless each person who is to take under the distribution gives an undertaking or security that he or she will, if the probate or administration is revoked—
(i)if the person has received property other than money under the order—restore the property or, at his or her option, pay an amount equal to the value of the property at the time he or she received the property to the person whose death was presumed or, if that person has subsequently died, to the administrator of the estate of that person; or
(ii)if the person has received money under the order—pay an amount equal to the amount of the money received under the order to the person whose death was presumed or, if that person has subsequently died, to the administrator of the estate of that person; and
(e)the court may direct the executor or the administrator to give, before the estate is distributed, the notices (including a notice stating a date before which a caveat against the distribution of the estate may be filed in the Supreme Court under the rules) that the court considers appropriate.
(2)If an executor or administrator of an estate has given the notices directed by the Supreme Court under subsection (1) (e), the executor or administrator—
(a)may, subject to subsection (3), after the end of the period stated in the notices, distribute the estate among the persons entitled to it, having regard only to the claims of which the executor or administrator has notice at the time of the distribution; and
(b)is not liable, in relation to any part of the estate so distributed, to a person entitled to that part of whose claim he or she did not have notice at the time of the distribution.
(3)If a caveat against the distribution of an estate has been filed in the Supreme Court in accordance with a notice under subsection (1) (e) and the caveat is in force under the rules—
(a)the executor or administrator must not distribute the estate among the persons entitled to it except under an order of the Supreme Court under subsection (4); and
(b)the executor or administrator, the person who filed the caveat or a person interested in the distribution of the estate may make application to the Supreme Court for an order under subsection (4).
(4)Despite the filing of a caveat in the Supreme Court in accordance with subsection (1) (e), the court may, on application under subsection (3) (b), make an order authorising the executor or administrator of an estate to distribute the estate among the people entitled to it.
(5)An order under subsection (4) may authorise the distribution of the estate subject to the conditions the Supreme Court considers appropriate.
9CEvidentiary effect of probate and letters of administration
(1)The probate of a will or letters of administration with a will annexed are evidence of the execution of the will.
(2)The copy of a will annexed to a probate or to letters of administration is evidence of the contents of the will.
(3)The probate of a will is evidence of the death of the testator and, if the probate states the date of death of the testator, of the date of death.
(4)Letters of administration of the estate of a deceased person are evidence of the death of the person and, if the letters of administration state the date of death of the person, of the date of death.
NoteThe Evidence Act 2011, s 92 (1) deals with the admission or use of the grant of probate or letters of administration to prove the death, or date of death, of a person or the execution of a testamentary document.
10BGrant to single executor reserving leave to others to apply
The Supreme Court may, if it considers appropriate, grant probate to 1 or more of the executors named in a will reserving leave to the executor who has not renounced, or the executors who have not renounced, to come in and apply for a grant of probate at a future time.
10CGrant of probate to public trustee and guardian etc
If a deceased person has named as an executor of the person’s will the public trustee and guardian, or the public trustee of a State, the Supreme Court may grant probate of the will to that public trustee.
NoteState includes the Northern Territory (see Legislation Act, dict, pt 1).
Practice about granting administration of real and personal estate
Subject to this Act and the rules, the practice and procedure in relation to the granting of administration of the personal estate of an intestate are applicable so far as may be, to administration of real estate, and administration of both real and personal estate may be granted in and by the same letters.
Eligible administrators
(1)The Supreme Court may grant administration of an intestate estate to any of the following persons, subject to this section:
(a)the partner of the intestate;
(b)1 or more of the next of kin of the intestate;
(c)if the intestate is survived by 2 partners—either partner, or both partners conjointly;
(d)a partner or partners of the intestate conjointly with 1 or more of the next of kin of the intestate;
(e)any other person (whether or not a creditor of the intestate) the court considers appropriate.
(2)The Supreme Court must only grant administration of an intestate estate to a person who is at least 18 years old.
(3)The Supreme Court must not grant administration of an intestate estate to a person mentioned in subsection (1) (e) if there is anyone else to whom administration may be granted under this section who—
(a)in the court’s opinion, can be trusted with administration of the estate; and
(b)applies to be granted administration of the estate.
(4)In this section:
partner, in relation to an intestate—see section 44.
Rights and duties of administrator
A person to whom administration of the estate of a deceased person is granted—
(a)has, subject to any limitations in the grant, the same rights and liabilities as the person would have if the person were the executor of the deceased person; and
(b)is accountable in the same way as the person would be accountable if the person were the executor of the deceased person.
NoteThis section was relocated from the Imperial Acts (Substituted Provisions) Act 1986, sch 2, pt 4 (for the effect of a relocation, see Legislation Act 2001, s 96). The 1986 Act substituted provisions for certain UK Acts that applied (or may have applied) in the ACT and repealed those Acts. The provisions of sch 2, pt 4 were substituted for 31 Edw. 3, St. 1, c 11 (1357) and 1 Jas. 2 c 17, s 6 (1685). The 1986 Act, s 4 (1) provided, in effect, that the rules of law about the interpretation of consolidating Acts apply to the interpretation of the provisions of a law set out in sch 2. These rules of law continue to apply to this section (see Legislation Act 2001, s 96 (3)).
Renunciation or non-appearance by executor
(1)This section applies if—
(a)the person appointed executor by a will renounces probate of the will; or
(b)the person appointed executor by a will survives the testator but dies without having taken out probate of the will; or
(c)an application is made in the Supreme Court under section 25 (Failure of executor to prove will) in relation to the person appointed executor by a will and the person does not file in the court a notice of intention to respond or defence within the time required by the rules.
(2)The person’s rights as executor of the will cease, and the representation of the testator and the administration of the testator’s estate are taken, without further renunciation, to devolve as if the person had not been appointed executor.
20ARenunciation etc by person appointed both executor and trustee of will
(1)If section 20 (1) (a) or (c) applies to a person who is appointed by a will both executor and trustee, the person is taken to have disclaimed the trust contained in the will.
(2)If—
(a)section 20 (1) (a), (b) or (c) applies to a person who is appointed by a will both executor and trustee, and administration with the will annexed is granted to a trustee company; or
(b)a person appointed by a will both executor and trustee authorises a trustee company to apply for administration with the will annexed, and administration with the will annexed is granted to the trustee company;
the trustee company is taken, because of the grant of administration and without any further appointment, to be appointed trustee of the will in the person’s place.
(3)In this section:
trustee company—see the Trustee Companies Act 1947, dictionary.
Administration to guardian of child sole executor
(1)If a child is sole executor, administration with the will annexed may be granted to—
(a)the guardian of the child; or
(b)any other person the Supreme Court considers appropriate;
until the child is 18 years old, with full or limited powers to act in the premises until probate has been granted to the executor or administration has been granted to some other person.
(2)The person to whom that administration is granted has the same powers as an administrator under an administration granted during the minority of the child.
Administration under power of attorney
(1)If a person entitled to probate or administration of a deceased estate is out of the jurisdiction, and has appointed a person within the jurisdiction under a power of attorney to exercise that entitlement, the Supreme Court may grant administration to the attorney on behalf of the entitled person on the terms the court considers appropriate.
(2)The grant of administration under subsection (1) continues in force despite the death of the donor of the power of attorney, subject to the terms of the grant.
Administration pendente lite and receiver
(1)The Supreme Court may—
(a)pending any suit touching the validity of the will of any deceased person, or for obtaining recalling, or revoking any probate or any grant of administration; or
(b)during a contested right of administration;
appoint an administrator of the personal estate and the same or any other person to be receiver of the real estate of any deceased person, with the full or limited powers that the court considers appropriate.
(2)The Supreme Court may make the orders for the remuneration of the administrator or receiver out of the personal and real estate of the deceased person it considers right.
Power to appoint administrator
The Supreme Court may, if a person dies—
(a)intestate; or
(b)leaving a will, but without having appointed an executor; or
(c)leaving a will and having appointed an executor, who—
(i)is not willing and competent to take probate; or
(ii)is resident out of the ACT;
if it considers it necessary or convenient, appoint some person to be the administrator of the estate of the deceased person or of any part of the estate, on giving the security (if any) that the court directs, and may limit the administration as the court considers appropriate.
Failure of executor to prove will
(1)This section applies if the person named as executor in a will—
(a)fails to prove the will or renounce probate within 6 months after the later of the following:
(i)the date of the testator’s death;
(ii)the date the executor turns 18 years old; or
(b)is unknown or cannot be found.
(2)The Supreme Court may, on application under the rules, make an order for administration of the estate, and any other orders, the court considers appropriate.
Issue of special letters of administration
If, at the end of 6 months from the death of any person, the executor to whom probate has been granted or the administrator is then residing out of the jurisdiction, the Supreme Court may, on the application of any creditor, legatee, or next of kin, grant to the creditor, legatee or next of kin so applying special letters of administration of the estate of the deceased person, nevertheless to cease on an order being made for the revocation of the grant of the special letters of administration as mentioned in section 29.
Special administrator to make certain affidavits
The person applying for grant of special letters of administration must, in addition to the oath usually taken by administrators, satisfy the Supreme Court by affidavit that the executor or administrator of the estate of the deceased person is resident out of the jurisdiction, and that—
(a)the applicant is thereby delayed in recovering or obtaining payment of money or the possession of goods and chattels, or real estate, to which he or she is by law entitled; or
(b)the estate is liable to loss or waste.
On return of original executor or administrator special administration to be revoked
(1)On the return within the jurisdiction of the executor to whom probate has originally been granted, or the administrator, the executor or administrator may apply to the Supreme Court to revoke the special grant of administration.
(2)The Supreme Court, on the hearing of the application, may make an order to revoke the special grant of administration on the terms and conditions about security, costs, or otherwise that the court appear reasonable, and the original probate or administration are and remain as valid and effectual as if the special grant of administration had not been made.
Accounting by special administrator
On any order being made by the Supreme Court for the revocation of any grant of special administration the special administrator is bound duly to account to the original executor or administrator, and to pay over any money received by him or her as special administrator that is undisposed of as the court may order.
Liability of executor or administrator neglecting to apply for revocation of special administration
If the executor or administrator neglects to apply for an order for the revocation of the special administration, he or she is, even though the special administration remains unrevoked, liable to answer and make good all claims and demands against the estate of the deceased person to the extent of the assets that have come to his or her hands or that might have come to his or her hands apart from his or her wilful neglect, or default, including the neglect mentioned in this section.
Revocation of grants not to prejudice actions or suits
If, while any legal proceeding is pending in any court by or against any executor or administrator lawfully acting as such, the grant of probate or administration is revoked, that court may order that the proceeding be continued by or against the new personal representative in like way, as if the proceeding had been originally begun by or against the new representative, but subject to the conditions and variations (if any) as that court directs.
Discharge or removal of executors and administrators
(1)In this section:
administrator includes an administrator appointed under this section.
NoteAdministrator includes any person to whom administration is granted (see dict).
executor means an executor who has been granted representation.
(2)This section applies if an executor or administrator—
(a)remains out of the ACT for more than 2 years; or
(b)wants to be discharged from the office of executor or administrator; or
(c)after the grant of representation or appointment—
(i)refuses to act in the office; or
(ii)is unfit to act in the office; or
(iii)is incapable of acting in the office.
(3)The Supreme Court may order, on the terms and conditions it considers appropriate—
(a)the discharge or removal of the executor or administrator (the old executor or administrator); and
(b)the appointment of someone else as administrator (the new administrator) in place of the old executor or administrator.
(4)For subsection (3), the Supreme Court may make—
(a)orders for vesting the estate in the new administrator; or
(b)orders about accounts; or
(c)any order about costs.
(5)The old executor or administrator is not liable for an act done or omission made after the date of the order.
(6)On appointment of a new administrator—
(a)the property and rights of the estate vested in the old executor or administrator vest in the new administrator; and
(b)the liabilities properly incurred in the administration of the estate by the old executor or administrator vest in the new administrator; and
(c)the new administrator has the same functions as if probate of the estate had originally been granted to the new administrator.
(7)If the Supreme Court considers it necessary, notice of an application for the discharge or removal of the old executor or administrator may be served on anyone the Supreme Court directs.
32ARevocation of grant if person living at date of grant
(1)If the Supreme Court is satisfied that a person was living at the time when probate of his or her will, or administration of his or her estate, was granted by the court, the court—
(a)must revoke the grant on the terms (if any) the court considers appropriate in relation to proceedings that have been begun by or against the executor or administrator or in relation to costs or any other matter; and
(b)may at any time, whether before or after the revocation of the grant, make the orders the court considers appropriate for the protection of the estate, including an order for an injunction against the executor or administrator or another person and an order for the appointment of a receiver.
(2)An application to the Supreme Court for the revocation, under subsection (1), of a grant of probate of the will, or administration of the estate, of a person may be made—
(a)by the person; or
(b)if the person has died since the grant—by any person entitled to apply for a grant of probate of the will, or administration of the estate, of the person or by a person interested in the estate of the person.
32BEffect of revocation of grant
(1)If a grant of probate or administration has been revoked under this Act—
(a)the executor or administrator to whom the grant was made must account to the Supreme Court for the property that he or she has received, or that has vested in him or her, as the executor or administrator, and the court may make the orders it considers appropriate in relation to the disposal by the executor or administrator of so much of that property as remains in his or her hands; and
(b)the executor or administrator is not liable in relation to property that he or she has disposed of under the grant in good faith before the revocation of the grant if he or she complied with section 9B in relation to the disposing of that property; and
(c)the revocation of the grant does not, of its own force, invalidate a disposal of property made by, or to, the executor or administrator before the revocation of the grant; and
(d)a person entitled to any property that has been distributed by the executor or administrator to whom the grant was made may apply to the court for an order under subsection (2); and
(e)an action does not lie against the registrar-general for loss suffered by any person in consequence of the registration of a dealing with land under the Land Titles Act 1925, being a dealing lawfully made by the executor or administrator before the revocation of the grant; and
(f)the court may make the vesting orders it considers appropriate.
(2)If the Supreme Court, on application made under subsection (1) (d) in relation to property, is satisfied that the applicant is the person entitled to the property and that the respondent to the application is the appropriate person in relation to the property, the court may make an order directing the respondent—
(a)if the respondent is in possession of the property—to return the property to the applicant or pay to the applicant the sum the court considers reasonable in the circumstances; or
(b)in any other case—to pay to the applicant the sum the court considers reasonable in the circumstances.
(3)For this section, the appropriate person, in relation to property distributed under a probate or administration that has been revoked, is—
(a)if the person to whom the property was so distributed is alive—that person; or
(b)if the person to whom the property was so distributed is dead—the executor of the will or administrator of the will or estate of that person or a person who has benefited as a result of the property having been distributed to that person.
(4)This section does not affect any entitlement of an executor or administrator to commission, or to any protection, indemnity, reimbursement or right under any other section of this Act.
Division 3.3 Effect of grant of representation
38AEstate to vest in public trustee and guardian until grant
(1)This section applies if—
(a)a person dies; and
(b)representation has not been granted.
(2)The person’s real and personal estate vests in the public trustee and guardian.
(3)The public trustee and guardian may undertake the administration of the person’s estate while the person’s property is vested in the public trustee and guardian.
(4)However, subsection (3) does not require the public trustee and guardian—
(a)to administer the estate; or
(b)act as trustee of any trust created by the person’s will; or
(c)exercise any discretion, power or authority of a personal representative, trustee or devisee.
Real and personal estate to vest in executor or administrator
On the grant of representation of the estate of any deceased person, all real and personal estate of which the person dies seised or possessed of, or entitled to, in the ACT, and that is unadministered at the date of the grant, passes to and becomes vested in the executor to whom probate has been granted or the administrator for all his or her estate and interest therein in the following way:
(a)on testacy in the executor or administrator with the will annexed;
(b)on intestacy in the administrator;
(c)on partial intestacy in the executor or administrator with the will annexed.
Real estate held in trust
All real estate held by any person in trust or by way of mortgage, and vesting under section 39, vests in his or her executor or administrator, subject to the trusts and equities affecting the estate.
Property of deceased to be assets
(1)The real, as well as the personal, estate of every deceased person are assets in the hands of his or her executor to whom probate has been granted, or his or her administrator, for the payment of all duties and fees, and for the payment of his or her debts in the ordinary course of administration.
(2)The executor or administrator for purposes of administration, may, subject to sections 50 and 51, sell that real estate, or mortgage it with or without a power of sale, and convey it to a purchaser or mortgagee in as full and effectual a way in law as the deceased person could have done in his or her lifetime.
41AProperty of deceased liable for debts
(1)The following are assets for the payment of the funeral, testamentary and administrative expenses and the debts and other liabilities of a deceased person:
(a)the real and personal property of the person, to the extent of the person’s beneficial interest in it;
(b)any real and personal property disposed of by the person’s will in exercise of a general power.
(2)If a person—
(a)on whom a beneficial interest in any property referred to in subsection (1) devolves; or
(b)to whom such an interest is given; or
(c)in whom such an interest vests;
disposes of the interest or of a part of the interest in good faith before a proceeding is taken or process is sued out against him or her, the person is personally liable for the value of the interest or part so disposed of, but the interest or part is not liable to be taken in execution in the proceeding or under the process.
41BAppointments by will under general power
If a provision contained in the will of a deceased person operates as an appointment under a general power to appoint by will, the property, whether real or personal, that passes because of the provision vests in the executor or administrator as if the testator had been entitled to the property at his or her death, whether or not he or she was so entitled for an estate or interest determining on his or her death or for any other estate or interest.
41CAdministration of assets
(1)If the estate of a deceased person is sufficient for the payment in full of all the expenses, debts and liabilities payable from the estate, the person’s real and personal property is, subject to the provisions of the person’s will (if any) and to any law in force in the ACT about charges on property, applicable in the order set out in schedule 4, part 4.1 for the payment of the expenses, debts and liabilities payable from the estate.
(2)If the estate of a deceased person is insufficient for the payment in full of all the expenses, debts and liabilities payable from the estate, the person’s real and personal property must, subject to the Bankruptcy Act 1966 (Cwlth), be administered in accordance with the rules set out in schedule 4, part 4.2.
41DApplication of income of settled residuary estate
(1)If a deceased person leaves a will containing a residuary gift because of which real or personal property is settled by way of succession, this section applies to and in relation to the income derived from that property.
(2)The income to which this section applies is not applicable in payment of—
(a)the funeral, testamentary or administrative expenses payable from the estate of the person; or
(b)the debts or liabilities of the person; or
(c)any interest that accrued on any such debts or liabilities before the death of the person; or
(d)any legacies bequeathed by the will of the person.
(3)The income to which this section applies is applicable in payment of the interest (if any) that accrues—
(a)on the funeral, testamentary or administrative expenses payable from the estate of the person; or
(b)after the death of the person, on the debts or liabilities of the person; or
(c)on any legacies bequeathed by the will of the person;
before payment, and the income is so applicable in priority to any other assets in the estate of the person.
(4)Subject to subsection (3), the income to which this section applies is payable to the person for the time being entitled to the income from the settled property.
(5)If, in the final adjustment of the estate of a deceased person among the persons entitled to share in the distribution of the estate—
(a)property (other than property referred to in subsection (1)) is treated as if it had been used in the proper order in payment of the funeral, testamentary and administrative expenses, the debts and the liabilities of the estate or of any legacies bequeathed by the will of the deceased person although it was not in fact so used; and
(b)income was earned by that property after the death of the person but before the property was so used or was treated as having been so used;
that income is, for this section, taken to be income to which this section applies.
(6)This section—
(a)does not affect the rights of a creditor of the estate; and
(b)applies subject to the provisions of the will of the deceased person and of any law in force in the ACT in relation to charges on the property of a deceased person.
Real estate to be held on trusts of will
Subject to this part, the real estate of every deceased person devising that estate by will must be held by the executor to whom probate has been granted, or the administrator with the will annexed, according to the trusts and dispositions of the will.
Rights of executor in relation to real estate
The executor to whom probate has been granted has the same rights, and is subject to the same duties, in relation to the real estate of the testator, as executors had or were subject to in relation to personal assets under the law in force in New South Wales as in force immediately before 21 October 1929.
Division 3.4 Position of executor of an executor
NoteThe provisions of this division were relocated from the Imperial Acts (Substituted Provisions) Act 1986, sch 2, pt 3 (for the effect of a relocation, see Legislation Act 2001, s 96). The 1986 Act substituted provisions for certain UK Acts that applied (or may have applied) in the ACT and repealed those Acts. The provisions of sch 2, pt 3 were substituted for 25 Edw. 3, St. 5, c 5 (1351). The 1986 Act, s 4 (1) provided, in effect, that the rules of law about the interpretation of consolidating Acts apply to the interpretation of the provisions of a law set out in sch 2. These rules of law continue to apply to this division (see Legislation Act 2001, s 96 (3)).
43AExecutor of executor
If—
(a)probate of the will of a testator has been granted to a person (in this division called the original executor) as the sole executor, or as 1 of the executors, of the will of the testator; and
(b)the original executor was, immediately before his or her death, the sole, or the last surviving, executor of the will of the testator; and
(c)probate of the will of the original executor is granted to the executor, or 1 of the executors, (the succeeding executor) of the will of the original executor;
the succeeding executor becomes, on the grant of probate of the will of the original executor—
(d)the executor of the will of the testator; and
(e)the executor of the will of any other testator of whose will the testator was, immediately before his or her death, the executor under the application, or successive applications, of this section.
43BWhen ceases to represent deceased
If, after a person has become the executor of the will of a testator under the application, or of successive applications, of section 43A, another person who was appointed an executor of the will of that testator is granted probate of that will, the firstmentioned person ceases, on the grant of that probate, to be the executor of the will of that testator.
43CRights and liabilities of executor of executor
While a person who has become the executor of the will of a testator under the application, or of successive applications, of section 43A, continues to be the executor of the will of the testator—
(a)the person has the same rights in relation to the estate of that testator as the original executor, or the original executors, would have if living; and
(b)the person is, to the extent to which the estate of the testator has come to his or her hands, answerable as if the person were the original executor, or 1 of the original executors of the will of the testator.
Part 3AIntestacy
Division 3A.1 Preliminary
Interpretation for pt 3A
In this part:
eligible partner, of an intestate, means someone, other than the spouse, civil union partner or civil partner of the intestate, who—
(a)was the intestate’s domestic partner when the intestate died; and
(b)either—
(i)had been the intestate’s domestic partner continuously for 2 or more years when the intestate died; or
(ii)is the parent of the intestate’s child, if the child was under 18 years old when the intestate died.
NoteFor the meaning of domestic partner, see Legislation Act, s 169.
intestate means a person who dies on or after 1 July 1967 and either does not leave a will or leaves a will but does not dispose effectively, by the will, of the whole or part of his or her real or personal property.
intestate estate, in relation to an intestate, means—
(a)for an intestate who leaves a will—the real and personal property of the intestate that is not effectively disposed of by the will; or
(b)in any other case—the real and personal property of the intestate.
partner—an intestate’s partner is either of the following:
(a)the spouse, civil union partner or civil partner of the intestate when the intestate died;
(b)the eligible partner of the intestate.
personal chattels, in relation to an intestate, means the tangible personal property of the intestate, other than the following:
(a)property used exclusively for a business purpose;
(b)banknotes or coins, unless they are part of a collection made in pursuit of a hobby or another non-commercial purpose;
(c)property held as a security;
(d)property in which the intestate invested as a hedge against inflation or adverse currency movements, such as gold bullion or uncut diamonds;
(e)an interest in land.
personal representative, in relation to an intestate, means the executor of the will, or the administrator of the estate, of the intestate.
Division 3A.2 Distribution on intestacy
44AWhole blood or half-blood relationships
For this division, a relationship may be of the whole blood or the half-blood.
Executor or administrator to hold property of intestate on trust for persons entitled
The personal representative of an intestate holds, subject to his or her rights, powers and duties for the purposes of administration, the intestate estate on trust for the persons entitled to it in accordance with this division.
45ADistribution between spouse, civil union partner or civil partner and eligible partner
(1)If an intestate is survived by both a spouse, civil union partner or civil partner and an eligible partner, the entitlement of each to the partnership share of the intestate estate must be worked out as follows:
(a)if the eligible partner and the intestate had been domestic partners continuously for less than 5 years when the intestate died—the partnership share of the intestate estate must be distributed equally between the spouse, civil union partner or civil partner and the eligible partner;
(b)if the eligible partner and the intestate had been domestic partners continuously for 5 years or more when the intestate died—the eligible partner is exclusively entitled to the partnership share.
(2)In this section:
partnership share, in relation to an intestate, means the share of the estate to which the intestate’s partner is entitled under this division.
Entitlement of children
(1)This section applies to a person entitled under this division to the whole of, or a share in, an intestate estate (the relevant interest) who, at the time of the death of the intestate, is a child.
(2)The child is entitled to take the relevant interest in the estate immediately.
Estate by courtesy or right of dower not to arise
An estate by courtesy or right of dower or an equivalent estate does not arise out of the real property in relation to which a person dies intestate.
Distribution of intestate estate
(1)The person or persons entitled to take an interest in an intestate estate, and the interest in that estate that that person or those persons are entitled to take must, subject to this division, be ascertained by reference to schedule 6 according to the facts and circumstances existing in relation to the intestate.
(2)If an intestate is survived by his or her partner, the intestate estate is taken, for schedule 6 and subsection (3), not to include any personal chattels of the intestate.
(3)For schedule 6, the value of an intestate estate must be ascertained by deducting from the gross value of that intestate estate an amount equal to such of the debts and liabilities of the estate, the funeral and testamentary expenses, the costs and expenses of administering the estate and the estate duties, probate duties and death duties payable in relation to the estate as are payable out of that intestate estate.
(4)If an item of schedule 6 provides for the payment of a sum and interest on that sum out of an intestate estate and then provides for the payment of an additional sum equal to a particular proportion of the value of the balance of the intestate estate, the value of the balance of the intestate estate must be ascertained for that item by ascertaining the value of the intestate estate in the way provided by subsection (3) and deducting from that value the firstmentioned sum and the interest payable on that sum.
(5)For schedule 6—
(a)the brothers and sisters of an intestate; and
(b)the grandparents of an intestate; and
(c)the brothers and sisters of a parent of an intestate; and
(d)the issue of any of those brothers or sisters who predeceased the intestate;
are the next of kin of the intestate.
49AInterest of partner on intestacy in personal chattels
If an intestate is survived by his or her partner, the partner is entitled to take, absolutely, any personal chattels of the intestate that are not effectively disposed of by the will (if any) of the intestate.
49AAImmovable property if intestate domiciled elsewhere
(1)If—
(a)an intestate was, at the time of death, domiciled in the ACT; and
(b)immovable property situated in a place outside the ACT forms part of the intestate estate; and
(c)the intestate is survived both by a partner and by issue; and
(d)the partner is, under a law of that place, entitled to part or all of that property, or to a sum of money calculated by reference to the value of part or all of that property;
the property or part of the property, or the sum of money, to which, under that law, the partner is entitled, is taken to form part of the intestate estate for section 49 (3).
(2)Subject to subsection (4), if—
(a)an intestate was, at the time of death, domiciled outside the ACT; and
(b)the intestate is survived both by a partner and by issue; and
(c)immovable property situated in the ACT forms part of the intestate estate; and
(d)the partner is, under a law of a place outside the ACT, entitled to all or part of any other property (other than personal chattels) that forms part of the intestate estate, or to a sum of money calculated by reference to the value of all or part of that other property;
the property or part of the property, or the sum of money, to which, under that law, the partner is entitled, is taken to form part of the intestate estate for section 49 (3).
(3)If property or a sum of money is, under subsection (1) or (2), taken to form part of the intestate estate of an intestate, schedule 6, part 6.1, item 2 applies as if the references in that item to $200 000 were references to the sum ascertained by deducting from $200 000 an amount equal to the value of that property, or to that sum of money.
(4)Subsection (2) does not apply in relation to an intestate estate if the partner’s share in that part of the estate that devolves in accordance with the law of the place where the intestate was domiciled would, under that law, be reduced by an amount calculated by reference to the value of part or all of the immovable property referred to in subsection (2) (c).
49BHow distribution to issue is made
(1)If an intestate is survived by issue who are entitled to the whole or a part of the intestate estate—
(a)if only 1 child of the intestate survives the intestate—that person is entitled to the whole, or that part, of the intestate estate; or
(b)if the intestate is survived by the issue of his or her child or 1 of his or her children but by no other issue—those issue are entitled to the whole, or that part, of the intestate estate through all degrees according to their stocks, and, if there are more than 1 issue, in equal shares; or
(c)in any other case—the whole or that part of the intestate estate must be divided into a number of parts ascertained in accordance with subsection (2) and—
(i)any child of the intestate who survived the intestate is entitled to 1 of those parts; and
(ii)the issue of any child of the intestate who died before the intestate leaving issue who survived the intestate are entitled to 1 of those parts through all degrees, according to their stocks, and, if there are more than 1 issue, in equal shares.
(2)The number of parts for subsection (1) (c) is a number equal to the sum of—
(a)a number equal to the number of children (if any) of the intestate who survived the intestate; and
(b)a number equal to the number of children (if any) of the intestate who died before the intestate leaving a child or remoter issue who survived the intestate.
49BAGifts made before death of intestate
(1)If—
(a)an intestate has, within the period of 5 years immediately before death, given any money or property to or for the benefit of a person who is, under this division, entitled to a share in the intestate estate, or to or for the benefit of an unentitled partner of such a person; and
(b)the intestate estate, or a part of the intestate estate, is divisible between that person, or the issue of that person, and another person or persons entitled under this division to a share in the intestate estate;
the money or property is taken to have been given in or towards satisfaction of the share that the person will become entitled to take, or would have become entitled to take if he or she had survived the intestate in the intestate estate or the part of the intestate estate unless—
(c)the contrary intention appears from the circumstances of the particular case; or
(d)the value, as at the date of death of the intestate, ascertained in accordance with the requirements of the personal representative of the intestate, of all the money or property or of so much of the money or property in relation to which such a contrary intention did not appear, does not exceed $10 000.
(2)If, under subsection (1), any money or property is taken to have been given in or towards satisfaction of the share of a person referred to in subsection (1), the money or property must be brought into account at a valuation, as at the date of death of the intestate, in accordance with the requirements of the personal representative of the intestate, in calculating the share that the person or the person’s issue is, under this division, entitled to take in the intestate estate or a part of the intestate estate.
(3)This section does not apply in relation to money or property given to or for the benefit of the intestate’s partner.
(4)If an intestate has made a gift to which this section applies, the unentitled partner of a person entitled to a share in the intestate’s estate is, for subsection (1), someone who—
(a)is not entitled to a share in the intestate’s estate; and
(b)was the domestic partner of the entitled person at the time of the gift; and
(c)either—
(i)was the entitled person’s spouse, civil union partner or civil partner at that time; or
(ii)had been the entitled person’s domestic partner continuously for 2 or more years at that time; or
(iii)was at that time the parent of a child of the entitled person, if the child was less than 18 years old at that time.
NoteFor the meaning of domestic partner, see Legislation Act, s 169.
(5)In this section:
given, in relation to money or property, means money or property paid, transferred, assigned or settled (otherwise than for valuable consideration).
49CHow distribution to next of kin is made
(1)If, under this Act, the next of kin of an intestate are entitled to the intestate estate, the persons entitled to that intestate estate must be ascertained as follows:
(a)the brothers and sisters of the intestate who survived the intestate, and the issue of a brother or sister of the intestate who died before the intestate, being issue who survived the intestate, are entitled to the intestate estate;
(b)if the intestate is not survived by any persons entitled to the intestate estate under paragraph (a) but is survived by 1 or more grandparents—the grandparent is entitled to the intestate estate or the grandparents are entitled to the intestate estate in equal shares;
(c)if the intestate is not survived by any persons entitled to the intestate estate under paragraph (a) or (b)—the uncles and aunts of the intestate who survived the intestate and the issue of such an uncle or aunt who died before the intestate, being issue who survived the intestate, are entitled to the intestate estate.
(2)An intestate estate must be divided among the brothers and sisters or the uncles and aunts of the intestate, and the issue of those brothers or sisters, or uncles or aunts, who died before the intestate, in the same way as the intestate estate would have been divided among those persons if the brothers and sisters or the uncles and aunts had been children of the intestate and the issue of a brother, sister, uncle or aunt who died before the intestate had been issue of a child of the intestate who died before the intestate.
Earlier republications
Some earlier republications were not numbered. The number in column 1 refers to the publication order.
Since 12 September 2001 every authorised republication has been published in electronic pdf format on the ACT legislation register. A selection of authorised republications have also been published in printed format. These republications are marked with an asterisk (*) in column 1. Electronic and printed versions of an authorised republication are identical.
Republication No Amendments to Republication date 1 A1991‑20 31 August 1991 2 A1993‑91 31 January 1994 3 A1994‑97 31 January 1995 4 A1996‑15 30 November 1996 5 A1998‑42 31 August 1999 6 A2001‑56 9 May 2002 7 A2002‑27 10 September 2002 8 A2002‑40 1 November 2002 9 A2003‑2 31 March 2003 10 A2004‑2 22 March 2004 11 A2004‑60 10 January 2005 12 A2005‑60 22 December 2005 13 A2006‑40 29 September 2006 14 A2007‑3 28 March 2007 15 A2007‑3 30 March 2007 16 A2007‑3 12 April 2007 17 A2008‑7 7 May 2008 18 A2008‑14 19 May 2008 19 A2008‑22 29 July 2008 20* A2008‑29 27 August 2008 21 A2011‑48 1 March 2012 22 A2012‑40 11 September 2012 23 A2014-49 17 November 2014 24 A2015-33 14 October 2015 25 A2016‑13 1 April 2016 26 A2020‑16 1 June 2020 27 A2021‑3 26 February 2021 28 A2021‑33 17 December 2021
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