NSW Trustee and Guardian Regulation 2008 (NSW)

Part 1Preliminary1Name of Regulation

This Regulation is the NSW Trustee and Guardian Regulation 2008.

2Commencement

This Regulation commences on 1 September 2008.

Note—

This Regulation replaces the Public Trustee Regulation 2001 which is repealed on 1 September 2008 by section 10 (2) of the Subordinate Legislation Act 1989.

3Definitions(1)

In this Regulation:

estate, in Parts 2 and 3, includes trust or fund.

the Act means the NSW Trustee and Guardian Act 2009.

trustee includes an administrator or executor or any other person acting in a similar fiduciary capacity.

(2)

Notes in the text of this Regulation do not form part of this Regulation.

Part 2Fees and charges for trust mattersDivision 1AApplication3AApplication of Part

This Part applies to trust matters and matters other than matters relating to managed estates.

Division 1Fees4Taxation returns

If, in any estate in respect of which the NSW Trustee acts either solely or jointly with any other person or persons as trustee, returns are required by any authority of the Commonwealth or of this or any other State or Territory for the purpose of assessment of any tax or duty, the NSW Trustee may charge to the estate:

• (a)

  an investigation fee, and

• (b)

  an additional fee for each return lodged,

that the NSW Trustee determines to be appropriate.

5Real estate inspections and valuations

The NSW Trustee may charge the following fees:

• (a)

  a fee (not exceeding $150 per hour) for any inspection, valuation or report regarding real estate,

• (b)

  a fee (not exceeding $150 per hour) for preparation of specifications for repairs or renovations to any building or work,

• (c)

  a fee (not exceeding $116 per hour) for a second or subsequent inspection (including a report arising from the inspection) on the progress of any such repairs or renovations.

6Dealings affecting shares in an estate(1)

The NSW Trustee may charge a fee (not exceeding $68) for the notation and recording of the assignment or mortgage of, or of any dealing affecting, a beneficiary’s share in an estate.

(2)

Any such fee is payable from the share of the beneficiary concerned.

7Attendance fees

The NSW Trustee may charge the following fees:

• (a)

  a fee (not exceeding $40) for attending at the Office of State Revenue for the purpose of search, or of marking or stamping documents, or at Land and Property Information New South Wales for the purpose of search, or of lodging or uplifting documents,

• (b)

  a fee (not exceeding $75) for obtaining an exemplification of grant of probate or administration and preparation of a power of attorney for the purpose of collecting assets situated outside New South Wales,

• (c)

  a fee (not exceeding $150 per hour) for any other attendances outside the offices used by members of staff.

8Work done if representation not subsequently obtained

If, for the purpose of obtaining representation in an estate, the NSW Trustee takes steps incidental to the NSW Trustee’s duties but does not subsequently obtain representation, the NSW Trustee may charge to the estate a fee (not exceeding $450) for the work involved.

9Attempted realisation of assets

If:

• (a)

  the NSW Trustee attempts, at the request of a beneficiary, to realise an asset in an estate, and

• (b)

  the asset is subsequently transferred or delivered unconverted into money to the beneficiary,

the NSW Trustee may charge to the estate a fee (not exceeding $300) for the work involved.

10Carrying on business

If the NSW Trustee finds it necessary to carry on a business in connection with the NSW Trustee’s administration of an estate, the NSW Trustee may charge to the estate a fee that, having regard to the work involved, the NSW Trustee considers just and reasonable.

11Administration account and audit fee

The NSW Trustee may, on a monthly basis, charge to an estate administered by the NSW Trustee an administration account and audit fee (not exceeding $10) on each account kept by the NSW Trustee in respect of the estate.

12Remuneration of registrars of Local Court

If the NSW Trustee appoints a Local Court registrar to act as agent of the NSW Trustee in respect of the administration of an estate, the NSW Trustee may charge to the estate such fee as the NSW Trustee considers just and reasonable to cover the remuneration payable to the registrar for acting as such an agent.

13Fee for management of common fund(1)

The NSW Trustee is entitled to receive from or out of the income received by a common fund under the Act in respect of matters to which this Part applies a fee (according to the value of the work done and the services rendered) for the establishment, keeping (including the keeping of books of account) and conduct of the common fund in respect of matters to which this Part applies.

(2)

The fee is to be calculated at a rate not exceeding 0.1% per year on the capital sums invested in the common fund in respect of matters to which this Part applies during the period in respect of which the income is received or allocated.

14Fee for trust investment planning

The NSW Trustee may charge a fee (not exceeding $150 per hour) for preparing, managing and reviewing an investment plan in respect of a trust.

15

(Repealed)

16Fees for drafting wills and powers of attorney

The NSW Trustee may charge the following fees:

• (a)

  a fee of $300 for drafting a new will,

• (b)

  a fee of $200 for revising an existing will,

• (c)

  a fee of $200 for drafting a new power of attorney,

• (d)

  a fee of $150 for revising an existing power of attorney,

• (e)

  a fee of $400 for drafting both a new will and a new power of attorney in respect of one estate,

• (f)

  a fee of $300 for revising both an existing will and an existing power of attorney in respect of one estate.

17Trust establishment fee

The NSW Trustee may charge a fee to a trust on the appointment of the NSW Trustee as trustee or to act as trustee (either solely or jointly with any other person or persons) of the trust, payable once only and calculated as a percentage of the value of the assets held on trust at the rate of:

• (a)

  3.5% on the first $100,000, and

• (b)

  2.5% on the next $100,000, and

• (c)

  1.5% on the next $100,000, and

• (d)

  0.5% on any amount exceeding $300,000.

18Fee for management of trust

The NSW Trustee may charge an annual fee for the management of a trust of which the NSW Trustee is appointed or acts as trustee (either solely or jointly with any other person or persons) calculated at the rate of 0.7% of the value of the assets held on trust.

19Fee for management of estate

The NSW Trustee may charge an annual fee for the management of an estate of which the NSW trustee has been appointed executor or administrator calculated at the rate of 0.7% of the value of the assets in the estate.

19AManner of payment of management fees

The fee to which the NSW Trustee is entitled under clause 17 or clause 18 may be paid:

• (a)

  wholly from the corpus or capital, or

• (b)

  wholly from the income, or

• (c)

  partly from the corpus or capital and partly from the income,

of the trust property.

19BEstate establishment fee(1)

The NSW Trustee may charge a fee to an estate on the appointment of the NSW Trustee as executor or administrator of the estate, payable once only and calculated as a percentage of the value of the assets in the estate at the rate of:

• (a)

  4% on the first $100,000, and

• (b)

  3.5% on the next $100,000, and

• (c)

  2.5% on the next $100,000, and

• (d)

  1.5% on any amount exceeding $300,000.

(2)

The NSW Trustee may impose a minimum charge under this clause of $200.

20Fee where NSW Trustee acts as attorney or agent

The fees that are payable to the NSW Trustee in any matter in which the NSW Trustee is acting as attorney or agent are, in respect of both capital and income, to be as arranged between the principals and the NSW Trustee.

21Locating beneficiaries(1)

The NSW Trustee may charge to an estate, or to the share of an estate in respect of which it is necessary to make inquiries or advertise, a fee that the NSW Trustee considers just and reasonable if:

• (a)

  the existence or identity of any or all of the persons beneficially entitled to share in an estate or of the next of kin is unknown or is not definitely established, and

• (b)

  it is necessary for the NSW Trustee to make inquiries or to advertise for the purpose of locating any persons or next of kin.

(2)

The amount of the fee is not to exceed 5% of the net value of the estate after payment of original claims.

Division 2

(Repealed)

Division 3Charges22Charges incidental to exercise of power of sale(1)

If, in respect of an estate, the NSW Trustee is authorised by an order of a court to sell land, the NSW Trustee may (unless otherwise directed by the court) impose a charge on the estate.

(2)

If the land is sold, the charge on the estate is not to exceed:

• (a)

  4% on the first $100,000, and

• (b)

  3% on the next $100,000, and

• (c)

  2% on the next $100,000, and

• (d)

  1% on any amount exceeding $300,000.

(3)

If the land is not sold, the amount that may be charged is not to exceed $450.

23Execution of documents

The NSW Trustee may (except in respect of an estate administered by the NSW Trustee) impose the following charges in respect of the execution of documents:

• (a)

  a charge (not exceeding $68) for executing any assurance of property by direction,

• (b)

  a charge (not exceeding $68) for executing any assurance by way of confirmation,

• (c)

  a charge (not exceeding $68) for executing any necessary consent for a mortgagee to exercise powers in respect of a mortgage.

24Production of documents

The NSW Trustee may impose a charge (not exceeding $40) for producing any deeds or documents of title.

25Search of records(1)

The NSW Trustee may impose a charge for making a search of records held by the NSW Trustee in any case in which, in the opinion of the NSW Trustee, an amount should be charged because of the time involved or of the nature or volume of the information sought.

(2)

The amount that may be charged is not to exceed $150 per hour.

26Legal advice and proceedings

The NSW Trustee may charge to an estate an amount to cover all costs and expenses incurred by the NSW Trustee in providing any legal advice, or in conducting any legal proceedings, in connection with that estate.

27General power to charge for services

The NSW Trustee may charge such amount, for any service or matter not otherwise mentioned in this Regulation, as is agreed on or (in the absence of agreement) as the NSW Trustee determines to be just and reasonable.

Division 4General28Fees cumulative

Any fee or charge that is payable from an estate under a provision of this Part is additional to any other fee or charge, and to any other cost or expense, that is payable from the estate.

29Amount of fees to be determined by NSW Trustee

The amount of any fee or charge payable in any particular case is, subject to this Part, to be determined by the NSW Trustee.

30

(Repealed)

31Deduction of fees etc from funds

The NSW Trustee may deduct any fee or charge that is payable under this Part in connection with an estate from any money that belongs to the estate and that is held by the NSW Trustee or is under the NSW Trustee’s control.

32GST may be added to fees or charges(1)

The NSW Trustee may, in addition to any fee or charge payable under this Part, charge the amount of any GST payable in respect of the service for which the fee, commission or charge is payable.

(2)

Subclause (1) does not permit the NSW Trustee to charge an amount that is greater than 10% of the maximum amount payable to the NSW Trustee apart from that subclause.

(3)

This clause has effect despite any other provision of this Part limiting an amount that may be charged by the NSW Trustee.

(4)

In this clause:

GST has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 of the Commonwealth.

Part 3Other matters relating to deceased estates33Application of Part

This Part applies to trust matters.

34Index of wills

The NSW Trustee is to maintain an index of all wills lodged with the NSW Trustee for safe custody.

35Small estates etc(1)

For the purposes of sections 26 and 27 of the Act, the NSW Trustee may administer property or an estate (as referred to in the subsection concerned) by election if the gross value of the property or estate does not exceed $100,000.

(2)

For the purposes of section 28 of the Act, the NSW Trustee must file a memorandum and obtain probate or letters of administration as referred to in that subsection if the gross value of the property to be administered exceeds $120,000.

(3)

For the purposes of section 31 of the Act, the NSW Trustee may deal with an estate without probate or administration if the net value of the estate does not exceed $20,000.

(4)

For the purposes of section 18 of the Act, the NSW Trustee may deal with money payable by the NSW Trustee in the manner referred to in that subsection if the amount of the money does not exceed $20,000.

36Notices and elections under Division 1 of Part 3.2 of the Act(1)

A notice of an election under Division 1 of Part 3.2 of the Act must state that the election has been made and may contain any other particulars of the election that the NSW Trustee thinks fit.

(2)

A notice of an election under Division 1 of Part 3.2 of the Act must be published:

• (a)

  if the deceased person resided in New South Wales at the date of death—in a newspaper circulating in the area where the deceased resided, or

• (b)

  in any other case—in a Sydney daily newspaper.

36ANotice of administration of certain small estates

The NSW Trustee is to give such notice, by advertisement or otherwise as it thinks fit, of its intention to act under section 31 of the Act.

36BReciprocal arrangement for intestacy

New Zealand is prescribed as a reciprocating State for the purposes of section 35 of the Act.

Part 4Managed estates37Interpretation(1)

In this Part:

GST has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 of the Commonwealth.

value means:

• (a)

  in relation to a managed person’s estate (other than a managed missing person), the gross amount of the value of the assets (whether real or personal) of the estate without deduction of debts or liabilities secured or unsecured, but does not include the value of the person’s principal place of residence, or

• (b)

  in relation to a managed missing person’s estate, the gross amount of the value of the assets (whether real or personal) of the estate without deduction of debts or liabilities secured or unsecured, but does not include the value of the person’s last known principal place of residence.

(2)

Words and expressions used in this Part have the same meaning as they have in the Mental Health Act 2007.

38Fees payable to the NSW Trustee—general(1)

The fees payable to the NSW Trustee in respect of the management of estates of managed persons are as follows:

• (a)

  an account keeping fee payable on each account kept by the NSW Trustee in respect of the estate not exceeding $10.00 per month,

• (b)

  for managing an investment for a managed person in a common fund—0.1% per annum of the value of the investment,

• (c)

  in respect of a return required by any authority of the Commonwealth or of this or any other State or Territory for the purpose of assessment of any tax or duty:

  • (i)

    an investigation fee, and

  • (ii)

    an additional fee for each return lodged,

  that the NSW Trustee determines to be appropriate,

• (d)

  for preparing, managing or reviewing an investment plan—such reasonable fee (not exceeding $150 per hour) as the NSW Trustee may fix,

• (e)

  in respect of an asset of the estate that is real estate:

  • (i)

    for any inspection, valuation or report—such reasonable fee (not exceeding $150 per hour) as the NSW Trustee may fix, or

  • (ii)

    for the preparation of specifications for repairs or renovations to any building or work—such reasonable fee (not exceeding $150 per hour) as the NSW Trustee may fix, or

  • (iii)

    for a second or subsequent inspection (including a report arising from the inspection) on the progress of the repairs or renovations—such reasonable fee (not exceeding $116 per hour) as the NSW Trustee may fix,

• (f)

  for the provision of legal advice, or for the conduct of any legal proceedings, in connection with the estate—such reasonable fee as the NSW Trustee may fix,

• (g)

  for any other service provided, or any other disbursement incurred, by the NSW Trustee in the administration of an estate—such reasonable fee as the NSW Trustee may fix.

(2)

The NSW Trustee may, in addition to any fee payable under this clause or clause 38A or 38B, charge the amount of any GST payable in respect of the service for which the fee is payable.

(3)

Subclause (2) does not permit the NSW Trustee to charge an amount that is greater than 10% of the maximum amount payable to the NSW Trustee apart from that subclause.

38AFees payable to the NSW Trustee—direct management(1)

This clause applies to the estates of managed persons where the NSW Trustee is the manager of the estate.

(2)

In addition to the fees payable under clause 38, the fees payable to the NSW Trustee in respect of the management of estates of managed persons are as follows:

• (a)

  for the establishment of the account of the managed person, payable once only—1% of the value of the estate, subject to a minimum fee of $500 being payable, up to a maximum of $3,000,

• (b)

  for the management of an estate—1.4% of the value of the estate, up to a maximum of $15,000, per annum.

38BFees payable to the NSW Trustee—private management(1)

This clause applies to the estates of managed persons where a person other than the NSW Trustee has been appointed as the manager of the estate.

(2)

In addition to the fees payable under clause 38, the fees payable to the NSW Trustee in respect of the management of estates of managed persons are as follows:

• (a)

  for the establishment of the account of the managed person, payable once only—$500,

• (b)

  for filing, examination and passing of accounts—such fee (not exceeding $300) as the NSW Trustee may fix.

(3)

The NSW Trustee must certify to the manager of an estate of a managed person:

• (a)

  the amount of the fee payable under subclause (2) (b), and

• (b)

  the name of the person who is required to pay the fees payable under subclause (2), and

• (c)

  the time within which the fee is to be paid.

39Information relating to mental health inquiry(1)

For the purposes of section 43 (a) of the Act, the prescribed information to be given is that specified in Schedule 1.

(2)

For the purposes of section 43 (b) of the Act, the prescribed information to be given is that specified in Schedule 2.

40Form of order or interim order that estate be managed under the Act(1)

The Magistrate or MHRT is to complete a notice of an order or interim order made by the Magistrate or MHRT that the estate of a person be subject to management under the Act.

(2)

The notice is to be in the form specified in Schedule 3.

41Medical superintendent to notify NSW Trustee of certain orders(1)

The medical superintendent of a mental health facility must give written notice to the NSW Trustee of the making of an order or interim order by a Magistrate or the MHRT to the effect that the estate of a patient be subject to management under the Act.

(2)

The medical superintendent must give the written notice within 7 days of the making of any such order and must attach a copy of the order to the notice.

42Medical superintendent to notify NSW Trustee of certain events

The medical superintendent of a mental health facility must, as soon as practicable, give written notice to the NSW Trustee of the occurrence of any of the following events in respect of a patient who is or was a managed person:

• (a)

  the patient’s discharge from the mental health facility,

• (b)

  the patient’s transfer from the mental health facility,

• (c)

  the patient’s absence with or without leave from the mental health facility,

• (d)

  the patient’s return to the mental health facility from leave,

• (e)

  the patient’s death at the mental health facility.

43Review by ADT of estate management decisions of NSW Trustee

All decisions made by the NSW Trustee in connection with the exercise of the NSW Trustee’s functions under Division 1 of Part 4.5 of the Act are prescribed for the purposes of section 62 of the Act.

44Copies of wills

For the purposes of section 80 (1) of the Act, a copy of a will may be certified as a true copy of the will by any person of or over the age of 18 years.

45Information that missing person is alive

For the purposes of section 91 (3) of the Act, the NSW Trustee may take into account any relevant information provided by the Commissioner of Police for the purposes of being satisfied that a managed missing person is alive.

46Restriction on NSW Trustee’s discretion to deal with certain estates—prescribed amount: section 95 (1) (a)

For the purposes of section 95 (1) (a) of the Act, the prescribed amount is $10,000.

47Reciprocal arrangement for interstate protected person

New Zealand is prescribed as a reciprocating State for the purposes of section 81 of the Act.

Part 5Transitional provisions48Distribution of interest to common funds

For the purposes of clause 14 (5) (a) of Schedule 1 to the Act, a further period of 12 months is prescribed for the continued application of section 36A (4) of the Public Trustee Act 1913 to the distribution of interest to accounts forming part of an existing common fund established under the Public Trustee Act 1913.

49Allocation of Interest Suspense Account

Despite clause 16 (1) of Schedule 1 to the Act, the NSW Trustee must determine the allocation of funds from the Interest Suspense Account under that subclause before 1 July 2011.

Schedule 1Information to be given to person detained

(Clause 39 (1))

If the Magistrate directs that you are to be detained in a mental health facility, the Magistrate will then decide if you are able to manage your property and affairs.

You have the right to have a barrister or solicitor represent you before the Magistrate. If you do not want a barrister or solicitor, you can have another person of your choice represent you, but you can only do this if the Magistrate agrees.

If the Magistrate thinks that you are able to manage your property and affairs, you can continue to do so. However, if you wish, you can have the NSW Trustee and Guardian manage your property and affairs. You can ask the medical superintendent to arrange for the NSW Trustee and Guardian to do this.

If the Magistrate decides that you are not able to manage your property and affairs, the Magistrate will order that your property and affairs be managed by the NSW Trustee and Guardian.

If you do not agree with the Magistrate’s decision that your property and affairs should be managed by the NSW Trustee and Guardian, you have the right to appeal to the Supreme Court.

Schedule 2Information to be given to nearest relative, guardian and friends of person detained

(Clause 39 (2))

If the Magistrate considers the patient should be further detained, the Magistrate will also consider whether or not the patient is able to manage his or her property and affairs.

If the Magistrate considers that the patient is able to manage his or her property and affairs, then the patient can continue to do so. The patient can ask that his or her property and affairs be managed by the NSW Trustee and Guardian.

If the Magistrate is not satisfied that the patient can manage his or her property and affairs, then the Magistrate will make an order that the NSW Trustee and Guardian manage the patient’s property and affairs.

If the patient does not agree with the Magistrate’s decision that his or her property and affairs should be managed by the NSW Trustee and Guardian, the patient has a right to appeal to the Supreme Court.

Schedule 3Notice of order or interim order for management

(Clause 40 (2))

An order*/interim order* has been made today that the estate of

[name]

be subject to management under the NSW Trustee and Guardian Act 2009.

Date

[Signature and name of Magistrate]*

[Signatures and names of Members of Mental Health Review Tribunal]*

[* Delete if inapplicable]