Public Trustee Regulations 2010 (SA)
South Australia
Public Trustee Regulations 2010
under the Public Trustee Act 1995
Contents
1Short title
3Interpretation
4Commission and prescribed fees
Schedule 1—Common fund—commission
1Commission on capital
2Commission on income
Schedule 2—Commission
Part 1—Commissions
Division 1—Commission on capital
Division 2—Commission on income
Division 3—General
Schedule 3—Transitional provision
2Transitional provision
Legislative history
1—Short title
These regulations may be cited as the Public Trustee Regulations 2010.
3—Interpretation
In these regulations—
Act means the Public Trustee Act 1995.
4—Commission and prescribed fees
(1)For the purposes of section 29(6a) of the Act, the rates or amounts of commission to be charged against an amount at credit in a common fund on account of a class of persons referred to in section 29(1)(b) of the Act are as set out in Schedule 1.
(2)For the purposes of section 45 of the Act, the rates or amounts of commission to be charged against an estate under the control of the Public Trustee (otherwise than under section 45 of the Administration and Probate Act 19191) are as set out in Schedule 2.
(3)If a maximum or minimum rate or amount is provided in Schedule 1 or Schedule 2, or in relation to prescribed fees, the Public Trustee may determine the rate or amount in a particular case, subject to that maximum or minimum.
Note—
1Section 45 of the Administration and Probate Act 1919 provides for the vesting of an intestate estate in the Public Trustee until administration is granted in respect of the estate.
Schedule 1—Common fund—commission
1—Commission on capital
Commission—
(a)in respect of estates administered by the Public Trustee, on money that is invested in a common fund on behalf of the beneficiaries of the estates that would otherwise be distributed to the beneficiaries; or
(b)on money that is invested in a common fund on behalf of all other classes of persons referred to in section 29(1)(b) of the Act,
must be charged at a rate not exceeding the maximum rate of 1% of the capital amount invested.
2—Commission on income
Commission on income received in respect of money invested in a common fund on behalf of a class of persons referred to in section 29(1)(b) of the Act, must be charged at a rate not exceeding the maximum rate of 5%.
Schedule 2—Commission
Part 1—Commissions
Division 1—Commission on capital
1(1) Subject to this Part, commission—
(a)in respect of estates of deceased persons and trust estates or funds held by the Public Trustee alone or with another person, on—
(i)the proceeds of all assets realised; and
(ii)money collected; and
(iii)the value of unrealised property transferred or delivered in kind to, or specifically appropriated in trust for, a person entitled;
(b)in respect of estates of protected persons (within the meaning of the Aged and Infirm Persons' Property Act 1940 or the Guardianship and Administration Act 1993) being managed or administered by the Public Trustee, on—
(i)the proceeds of all assets realised; or
(ii)money collected; or
(iii)the value of unrealised property to which the estate is entitled at the conclusion of the management of the estate,
must be charged at a rate not exceeding the maximum rates set out in the following table:
Maximum rate of commission
Rates on capital amount or value of estate:
4% up to $200 000 plus
3% on the amount from $200 001 to $400 000 plus
2% on the amount from $400 001 to $600 000 plus
1% on the amount over $600 000
(2)If property is sold subject to a mortgage or other charge, the amount of the mortgage or charge is considered part of the proceeds.
(3)In the case of a transfer to, or sale on behalf of, the spouse or domestic partner of a deceased person of—
(a)a home formerly shared by the spouses or domestic partners; or
(b)any of the household furniture and effects,
commission must be charged at a rate not exceeding half of the maximum rate applicable under clause 1 on the value of the share of the home and household furniture and effects of the spouse or domestic partner.
3(1) If money is required to be paid to the Public Trustee on behalf of a party or person by order or rule of a court, commission on that sum must be charged at a rate not exceeding the maximum rate applicable under clause 1.
(2)However, if a portion of the money is directed to be paid immediately, commission must be charged at a rate not exceeding 1%.
4If property has been delivered or transferred to the Public Trustee on behalf of a person under section 65 of the Administration and Probate Act 1919, commission must be charged at a rate not exceeding the maximum rate applicable under clause 1.
5If the Public Trustee has been appointed as agent or attorney—
(a)commission on the proceeds of all assets realised and money collected by the Public Trustee must be charged at a rate not exceeding the maximum rate applicable under clause 1;
(b)commission in respect of a service, or action taken, by the Public Trustee and not otherwise dealt with in these regulations must be charged at a rate agreed with the person appointing the Public Trustee as agent or attorney.
6If the Public Trustee has been appointed manager of unclaimed property under Part 6 of the Act, or holds money or other property in a capacity not otherwise dealt with in these regulations—
(a)commission on the proceeds of all assets realised and money collected by the Public Trustee must be charged at a rate not exceeding the maximum rate applicable under clause 1;
(b)commission in respect of a service, or action taken, by the Public Trustee and not otherwise dealt with in these regulations must be charged at a rate agreed with the person appointing the Public Trustee.
7In calculating commission on capital, expenses arising from the sale of property by the Public Trustee (including the commission on the sale of property paid by the Public Trustee to an agent) will be disregarded.
8(1) For the purposes of this Part, the value of unrealised property, unless otherwise directed by a court, is the price which, in the opinion of the Public Trustee, the property would realise if sold in the open market.
(2)However, if the transfer of property is delayed—
(a)by an intervening life interest; or
(b)by some other intervening interest, order or condition that has the effect of postponing distribution for a period of over 24 months from the date of death,
the value of the property transferred to a beneficiary is its value as determined by the Public Trustee on the date of the determination of the intervening interest, order or condition.
Division 2—Commission on income
9(1) Commission on income received by the Public Trustee in respect of an estate or trust or from a fund or property held by the Public Trustee alone or with another person must be charged—
(a)on income other than rent—at the rate of 5%;
(b)on rent—at the rate of 7.5%.
(2)Commission on income will be charged on the gross income received except where a business is carried on by the Public Trustee.
(3)If a business is carried on by the Public Trustee, commission on income will be charged on the gross income received from carrying on the business less all items of revenue expenditure attributable to the business (excluding expenses which are attributable to the general administration of the estate or trust, or the ownership of the assets).
(4)Commission on—
(a)old age, invalid, superannuation, war and service pensions;
(b)sick pay;
(c)payments of maintenance for divorced persons;
(d)payments of maintenance for protected persons;
(e)unemployment and sickness benefits paid by the Department of Social Security,
must be charged at a rate not exceeding the rate applicable under subclause (1).
(5)Commission in respect of rents collected by an agent who is employed, and paid a commission, by the Public Trustee must be charged at the rate of 2.5%.
Division 3—General
10(1) The Public Trustee may charge commission at the appropriate rate at the following times:
(a)subject to subclause (2), commission on money may be charged when the Public Trustee receives the money;
(b)commission on property sold or realised may be charged when the Public Trustee receives the proceeds of the sale or realisation;
(c)commission on unrealised property transferred or delivered in kind to, or specifically appropriated in trust for, a person entitled may be charged when the property is transferred, delivered or appropriated in trust.
(2)If the Public Trustee carries on a business, the commission on the income received in the course of carrying on the business must not be charged until the net annual trading profit has been ascertained.
(3)Commission on capital must not be charged more than once during the course of the administration of the estate, trust or fund.
11For a service in connection with the identification of a beneficiary or the ascertainment and establishment of next of kin, the Public Trustee may charge, either against the estate or against the share of the person to whom the inquiries relate, an additional commission not exceeding 10% of the value of the estate.
Schedule 3—Transitional provision
2—Transitional provision
These regulations do not affect an arrangement, understanding or undertaking made before the commencement of the Public Trustee Regulations 1995 with respect to the commission chargeable in respect of an estate, trust or fund which is in the course of administration by the Public Trustee.
Legislative history
Notes
•Please note—References in the legislation to other legislation or instruments or to titles of bodies or offices are not automatically updated as part of the program for the revision and publication of legislation and therefore may be obsolete.
•Earlier versions of these regulations (historical versions) are listed at the end of the legislative history.
•For further information relating to the Act and subordinate legislation made under the Act see the Index of South Australian Statutes or revoked by principal regulations
The Public Trustee Regulations 2010 revoked the following:
Public Trustee Regulations 1995
Principal regulations and variations
New entries appear in bold.
Year No Reference Commencement 2010 190 Gazette 26.8.2010 p4423 1.9.2010: r 2 2011 138 Gazette 9.6.2011 p2329 1.7.2011: r 2 2012 116 Gazette 31.5.2012 p2448 1.7.2012: r 2 2013 145 Gazette 6.6.2013 p2369 1.7.2013: r 2 2014 138 Gazette 19.6.2014 p2664 1.7.2014: r 2 2015 82 Gazette 18.6.2015 p2609 1.7.2015: r 2 2016 103 Gazette 23.6.2016 p2268 1.7.2016: r 2 2017 124 Gazette 22.6.2017 p2334 1.7.2017: r 2 2018 117 Gazette 21.6.2018 p2322 1.7.2018: r 2 2019 105 Gazette 13.6.2019 p1953 1.7.2019: r 2 2020 118 Gazette 4.6.2020 p2944 1.7.2020: r 2 Provisions varied
New entries appear in bold.
Entries that relate to provisions that have been deleted appear in italics.
Provision How varied Commencement r 2 omitted under Legislation Revision and Publication Act 2002 1.7.2011 r 4 r 4(2) varied by 118/2020 r 4(1) 1.7.2020 r 4(3) varied by 118/2020 r 4(2) 1.7.2020 Sch 2 heading varied by 118/2020 r 5(1) 1.7.2020 Pt 1 cl 1 cl 1(1) varied by 145/2013 r 4(1) 1.7.2013 cl 2 deleted by 145/2013 r 4(2) 1.7.2013 Pt 2 cl 12 substituted by 138/2011 r 4 1.7.2011 substituted by 116/2012 r 4 1.7.2012 substituted by 145/2013 r 4(3) 1.7.2013 substituted by 138/2014 r 4 1.7.2014 substituted by 82/2015 r 4 1.7.2015 substituted by 103/2016 r 4 1.7.2016 substituted by 124/2017 r 4 1.7.2017 substituted by 117/2018 r 4 1.7.2018 substituted by 105/2019 r 4 1.7.2019 deleted by 118/2020 r 5(2) 1.7.2020 Sch 3 cl 1 omitted under Legislation Revision and Publication Act 2002 1.7.2011 Historical versions
1.7.2011 1.7.2012 1.7.2013 1.7.2014 1.7.2015 1.7.2016 1.7.2017 1.7.2018 1.7.2019
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