Public Trustee Regulations 2019 (TAS)

Public Trustee Regulations 2019

I, the Governor in and over the State of Tasmania and its Dependencies in the Commonwealth of Australia, acting with the advice of the Executive Council, make the following regulations under the Public Trustee Act 1930 .17 December 2019

C. WARNER

Governor

By Her Excellency’s Command,

ELISE ARCHER

Minister for Justice

1Short titleThese regulations may be cited as the Public Trustee Regulations 2019. 2CommencementThese regulations take effect on 21 December 2019. 3Interpretation (1)  In these regulations – Act means the Public Trustee Act 1930; GST means the goods and services tax as defined in the A New Tax System (Goods and Services Tax) Act 1999 of the Commonwealth; property includes real and personal property. (2)  Property is taken to be in the hands of the Public Trustee if the Public Trustee is lawfully authorised to administer or deal with that property. 4Attestation of mark in place of signatureFor the purposes of the Act, if a person is required to sign his or her name and is unable to sign his or her name – (a) the person is to make his or her mark where he or she is required to sign; and (b) another person is to attest, on the same document, that the document was read out and explained to the person making his or her mark. 5Remuneration of advisory trustees (1) If an advisory trustee is appointed in accordance with section 22 of the Act, the advisory trustee is to be remunerated, subject to the provisions of a relevant trust instrument, at a rate – (a) subject to paragraph (b), that is determined by the Public Trustee with the agreement of the trustees; and (b) that does not exceed 2% of the gross capital value of the estate of which the person is the advisory trustee. (2)  Unless otherwise specified, the remuneration determined under subregulation (1) is determined exclusive of GST. 6Maximum fees, commissions, remunerations and charges receivable (1)  In this regulation – specified charges means the fees, commissions, remunerations and charges specified in Schedule 1. (2)  A specified charge in respect of a matter, or service, for which the specified charge is so specified in Schedule 1 is the maximum amount, exclusive of GST, that the Public Trustee may receive for that matter or service. (3)  For the purposes of calculating a specified charge, a deduction is not to be made, from the amount in respect of which the charge is being calculated, for – (a) legal or equitable charges on property; or (b) the expenses of a realisation of assets. (4)  If a specified charge is payable in respect of an estate, matter or service, the Public Trustee may deduct the specified charge from money held by the Public Trustee in the estate, matter or service that represents – (a) capital; or (b) income; or (c) both capital and income. (5)  In addition to a specified charge that the Public Trustee is entitled to receive under the Act, the Public Trustee is entitled to reimbursement for any reasonable expense incurred in respect of – (a) an estate, matter or service; and (b) an estate for which representation is not obtained. 7Notice under section 17 of ActFor the purposes of section 17(2) of the Act, the form specified in Schedule 2 is the prescribed form. 8Prescribed amounts for certain sections of ActFor the purpose of the following sections of the Act, the following amounts are prescribed: (a) for section 20(1) the prescribed amount is $80 000; (b) for section 20(4)(a) the prescribed amount is $85 000; (c) for section 20A(1) the prescribed amount is $30 000; (d) for section 20A(5) the prescribed amount is $35 000; (e) for section 32(1)(y) the prescribed amount is $20 000; (f) for section 34(1)(b) the prescribed amount is $20 000; (g) for section 56(c) the prescribed amount is $20 000; (h) for section 63(1) the prescribed amount is $20 000; (i) for section 74(1) the prescribed amount is $60 000. Schedule 1Maximum fees, commissions, remunerations and charges receivable

Regulation 6

PART 1Interpretation 1.   Interpretation In this Schedule – capital commission, chargeable on a matter, means the commission that may be charged on the gross capital value of the matter; percentage, of an estate, means the amount equal to that percentage of the assets, gross capital, income, fund, money or the whole of the estate, as may be specified. PART 2Charges on capitalDivision 1Estate of deceased persons 1.    Except as provided in item 2 – (a) the maximum rate of capital commission chargeable in respect of an estate if the Public Trustee is, or is taken to be, the executor or administrator of the estate, is the sum of – (i) 4.09% on the first $200 000 of the gross capital value of the estate or part of that amount; and (ii) 3.18% on the next $200 000 of the gross capital value of the estate or part of that amount; and (iii) 2.27% on the next $200 000 of the gross capital value of the estate or part of that amount; and (iv) 1.36% on the gross capital value of the estate in excess of $600 000; and (b) the maximum rate of capital commission chargeable on an interest of the deceased person in the principal place of residence, and the household furniture and household effects in that residence, that are transferred or conveyed to the surviving spouse of the deceased person, is 2% of the deceased person’s interest in the residence. 2.    The maximum rate of capital commission chargeable on assets – (a) situated outside Tasmania; and (b) comprised in an estate of which the Public Trustee is the principal executor or administrator – is 2% of value of the assets, if the Public Trustee’s grant in respect of those assets is required to be resealed in another State or a Territory of the Commonwealth. 3.    Despite items 1 and 2, if the application of the rates specified in items 1 and 2 results in a maximum commission of less than $5 000 for an estate – (a) those rates do not apply to the estate; and (b) the maximum commission for the estate is $5 000. Division 2Trusts 4.    The maximum rate of capital commission chargeable on a deed of trust or of a settlement, ante-nuptial or otherwise, is 2% of the value. 5.    The maximum charge on each amount received by the Public Trustee under section 16 of the Act, is 3% of the amount so received. 6.    The maximum charge on the gross value of assets in respect of which the Public Trustee is custodian trustee, is the sum of – (a) 0.5% on the first $50 000 of the assets or part of that amount; and (b) 0.25% on the assets in excess of $50 000. Division 3Miscellaneous 7.    The maximum rate of capital commission chargeable on money paid to the Public Trustee to be held or administered in terms of a court order or otherwise is the sum of – (a) 2.5% on the first $100 000 of the money or part of that amount; and (b) 2% on the next $400 000 of the money or part of that amount; and (c) 1% on the money in excess of $500 000. 8.    The maximum rate of capital commission chargeable on an estate administered and realised under the Guardianship and Administration Act 1995, if the Public Trustee is or is taken to be the executor or administrator of the estate, is the sum of – (a) 4.09% on the first $200 000 of the estate or part of that amount; and (b) 3.18% on the next $200 000 of the estate or part of that amount; and (c) 2.27% on the next $200 000 of the estate or part of that amount; and (d) 1.36% on the estate in excess of $600 000. 9.    The maximum charge on the gross value of property that is the whole, or part, of an estate administered under the Guardianship and Administration Act 1995 which is not realised but is transferred to the person entitled, or to his or her personal representative, on the termination of the Public Trustee’s administration, is 2% of the value of the property. 10.    The maximum charge on money paid to the Public Trustee at the discretion of trustees, or managers, of a superannuation, retirement or provident fund or other similar scheme, for the administration on behalf of the beneficiaries, is 3% of the money so paid. 11.    Subject to item 12, the maximum rate of capital commission chargeable on proceeds collected on a policy of insurance, in respect of damage to property or loss by fire or otherwise, that are retained and administered by the Public Trustee, is the sum of – (a) 4.09% on the first $200 000 of the proceeds or part of that amount; and (b) 3.18% on the next $200 000 of the proceeds or part of that amount; and (c) 2.27% on the next $200 000 of the proceeds or part of that amount; and (d) 1.36% on the proceeds in excess of $600 000. 12.    Despite item 11, if commission is collected by the Public Trustee in respect of property to which item 11 applies, the maximum rate of capital commission chargeable on proceeds collected on a policy of insurance, held in respect of the property, is the maximum charge calculated under item 11 in respect of the property less the commission collected under that item in respect of the property. 13.    The maximum charge on book debts collected by the Public Trustee is – (a) if the debts are subject to an authorised charge for collection, 3% of the debt; or (b) in all other cases, 6% of the debt. PART 3Charges on income 1.    In this Part – gross income includes – (a) capital gains realised, less the capital loss suffered arising from an investment in the common fund or another common investment fund maintained by the Public Trustee; and (b) the gross income derived from a business carried on by the Public Trustee. 2.    The maximum charge on gross income received by the Public Trustee, including interest paid in respect of an account at credit in the common fund or another common investment fund maintained by the Public Trustee, is, subject to items 3 and 4, 6% of the gross income. 3.    The maximum charge on gross income, received by the Public Trustee, that is subject to an authorised charge for collection, is 3% of the gross income. 4.    The maximum charge on a Commonwealth pension, or superannuation pension, paid to the Public Trustee is 6% of the pension. PART 4Particular charges 1.    The maximum rate of commission chargeable on the capital or income of an estate, realised by a former executor, administrator, trustee or person acting in a fiduciary capacity and subsequently vested in the Public Trustee, is 2% of the capital or income of the estate. 2.    If the assets of an estate or matter are administered or dealt with by the Public Trustee in more than one capacity, or an asset consists of a share in another estate administered by the Public Trustee, the maximum charge on the second or subsequent administration or dealing of the asset is 2% of the asset. 3.    The maximum rate of capital commission chargeable on capital received by the Public Trustee as attorney or agent, or on property dealt with by the Public Trustee in any way in that capacity, is the sum of – (a) 4.09% on the first $200 000 of the capital or part of that amount; and (b) 3.18% on the next $200 000 of the capital or part of that amount; and (c) 2.27% on the next $200 000 of the capital or part of that amount; and (d) 1.36% on the capital in excess of $600 000. PART 5Investment management fees 1.    The maximum charge on the gross value of assets of the common fund or another common investment fund maintained by the Public Trustee is 2% of the value of assets per year. 2.    The maximum management fee on assets invested by the Public Trustee in any capacity, except as executor or administrator of a deceased estate, is 2% of the gross value of the capital per year. Schedule 2Notice

Regulation 7

Form 1Notice under section 17

Displayed and numbered in accordance with the Rules Publication Act 1953.

Notified in the Gazette on 17 December 2019

These regulations are administered in the Department of Justice.