The Regulation revolves around a few recurring legal and administrative concepts that determine cost allocation, administrative control and procedural duties.

Fee unit as the numeric anchor

• The Regulation uses a fee unit as the primary numeric measure for many fees (cl 3, Schedule 3). For 2024-25 and 2025-26 the fee unit is fixed at $100 (Sch 3 cl 2(1)(a)). For subsequent years the fee unit is indexed by CPI according to the formula embedded in Schedule 3 (Sch 3 cl 2(1)(b)), subject to rounding rules (cl 2(2); Sch 3 cl 3) and a non-decrease floor (cl 2(3)). The CEO must notify the Parliamentary Counsel and publish the new fee-unit amount after the March-quarter CPI is released, but the indexing change operates regardless of notice (Sch 3 cl 4).

Value and scope definitions

• For fee calculations, value is generally the gross value of an estate’s assets, without deduction for debts or liabilities, but excluding the principal place of residence (cl 4). The term estate is defined broadly to include trust or fund (cl 4). Trustee is defined to include administrators and executors (cl 4).

Multiple charging bases

• Fees are expressed in several forms: fixed caps in fee units (e.g. for execution of documents, producing title deeds), per-hour caps in fee units (e.g. professional advice, inspections), percentage rates of asset value (e.g. trust administration, common fund management, fees for managed estates), sliding sale-based percentages for power-of-sale matters (cl 17), percentage amounts on income (cl 21(4)), and absolute dollar amounts for certain Act thresholds (cl 36). Clause 12 provides a catch-all power to charge fees for services not otherwise specified, set by agreement or by NSW Trustee as “just and reasonable”.

Cumulative and deductible costs

• Costs under Part 2 are cumulative (cl 31) and may be deducted from money belonging to the estate held by or under the control of NSW Trustee (cl 33). This changes the effective net value available to beneficiaries and to other claimants.

Discretion and determination by NSW Trustee

• Apart from fixed caps, the Regulation leaves significant room for NSW Trustee to determine the precise amount of a cost in any particular case, subject to the caps and constraints in the Part (cl 32). For certain professional services, fees may be agreed between NSW Trustee and the person requiring the service (cl 28A). Where the Act confers discretion to waive or reduce fees, that discretion is noted in the guidance (cl 28 note).

Managed persons, mental-health interface and notification duties

• The Regulation operationalises how MHRT orders interact with estate management. It prescribes the information to be given by tribunals (Schedule 1), the form of tribunal notices (Schedule 2), and duties on medical superintendents to notify NSW Trustee of MHRT orders within seven days and of key events “as soon as practicable” (cl 43-44). It also prescribes that NSW Trustee can rely on police information to assess whether a managed missing person is alive (cl 47).

Review and appeals

• The Regulation prescribes that all decisions by NSW Trustee under Division 1 of Part 4.5 of the Act fall within the scope of review by NCAT (cl 45). Schedule 1 indicates a right of appeal to the Supreme Court from MHRT decisions on estate management (Schedule 1, Part 1 and Part 2).

Indexation, publication and rounding mechanics

• The fee unit is indexed by CPI with specific rounding rules to the nearest cent and fee amounts then rounded to the nearest dollar with 50 cents rounded up (Sch 3 cl 2(2), cl 3). There is a non-decrease rule so that the unit cannot fall year to year (Sch 3 cl 2(3)). The CEO must give administrative notice so the changes are publicly available, but the indexing takes legal effect regardless of the notice (Sch 3 cl 4(2)).

Prescribed monetary thresholds and reciprocal states

• The Regulation prescribes certain monetary amounts to be used in the Act for deceased-estate provisions (cl 36). It also designates New Zealand as a reciprocating State for intestacy and protected-person purposes (cl 39, cl 49).

These concepts determine who pays, how much is charged, the allocation of cost risk between estates and beneficiaries, the circumstances in which NSW Trustee may earn fees on a for‑profit basis (notably legal costs, cl 10(2)), and the administrative machinery for estate and managed-person interactions.

The Regulation affects multiple distinct groups and stakeholders; the text identifies the actors and specifies how costs and duties are allocated.

NSW Trustee and Guardian

• NSW Trustee is the central decision-maker and charging authority. It may determine amounts subject to the caps and must implement indexing and publication obligations (cl 6; cl 32; Sch 3 cl 4). Many clauses specifically permit NSW Trustee to charge estates, trusts or persons certain fees and, for some services (cl 28A), to agree fees directly.

Estates, trusts and beneficiaries

• Where NSW Trustee acts as executor, administrator, trustee or manager, fees are charged to the estate or trust (Div 2-4). Fees may be charged against the estate generally, against income, or directly from a beneficiary’s share (for example cl 14(2)). Clause 33 permits deduction of any cost payable under Part 2 from money belonging to the estate and held by NSW Trustee or under NSW Trustee’s control. Clause 31 makes costs cumulative, so an estate may be subject to multiple fees deriving from different clauses.

Managed persons and their managers

• Estates of managed persons are covered by specific rules (Div 4). If NSW Trustee directly manages an estate it may charge an establishment fee (1% of value, subject to min/max), and an annual management fee of 1.4% up to a cap (cl 26). Where a private manager is appointed, NSW Trustee still charges for account establishment and for filing/examination of accounts (cl 27). NSW Trustee must certify the amount payable under cl 27(2)(b) and the person required to pay (cl 27(3)).

Individuals using NSW Trustee’s professional services

• Persons who seek drafting services (wills, powers of attorney, enduring guardianship) face capped fees (cl 28). NSW Trustee may also charge a reasonable fee for advice about financial matters (cl 7), subject to an hourly cap (2.75 fee units per hour). For certain professional services under the Act (s 11(3)-(3B)), fees can be charged by agreement (cl 28A).

Medical superintendents, MHRT and legal representatives

• Medical superintendents of mental health facilities are obliged to notify NSW Trustee of MHRT orders and certain patient events (cl 43-44). MHRT must complete a notice in the form specified in Schedule 2 when it orders estate management under the Act (cl 42). The Schedule 1 material also addresses information to detained persons and their relatives and specifies the right to a barrister/solicitor and the right to appeal to the Supreme Court (Schedule 1, Parts 1-2).

Local Court registrars and agents

• NSW Trustee may appoint Local Court registrars as agents and recover remuneration paid to them from the estate (cl 19). Fees for execution of assurances and consents are set, in some cases, to cover work undertaken by agents or registrars (cl 23).

Third parties with interests in estate assets

• Real-estate agents, valuers, legal practitioners and other contractors provide services for which NSW Trustee may charge fees to the estate (cl 9, cl 10, cl 29). Costs may be recovered from the estate.

Other jurisdictions

• New Zealand is expressly prescribed as a reciprocating State for intestacy and protected-person matters (cl 39, cl 49), so practitioners dealing with cross-border intestacy or interstate protected-person arrangements must treat New Zealand accordingly.

Regulated persons and potential objectors

• Individuals who might object to fees or actions by NSW Trustee have review avenues: decisions under Division 1 of Part 4.5 of the Act are prescribed for NCAT review (cl 45), and the Schedule 1 text references a right to appeal to the Supreme Court from MHRT decisions on estate management. These review avenues create an audience of potential litigants, advocates and advisers.

In short, the Regulation allocates fee liabilities primarily to estates, trusts, managed person estates and the persons who benefit from or control them, while imposing notice and reporting duties on MHRT and medical superintendents and leaving significant operational control and fee-setting discretion with NSW Trustee.

This section sets out concrete duties, discretions, payment rights and statutory entitlements created or implemented by the Regulation.

Duties to charge, to publish and to index

• NSW Trustee has the power and, where specified, the duty to charge particular fees to estates, trusts and persons for enumerated services (cl 6-34). The CEO must notify Parliamentary Counsel and publish the fee unit after the March-quarter CPI is released, though indexing takes legal effect irrespective of publication (Sch 3 cl 4).

Fee-setting discretions and constraints

• Where a fee is not specified, NSW Trustee may charge a fee agreed with the person or, absent agreement, that NSW Trustee determines to be “just and reasonable” (cl 12; cl 28A). However, many fees carry upper caps (e.g. per-hour caps, fee-unit caps, percentage caps), minima (cl 21(3) minimum 5 fee units), and absolute caps for certain managed-person fees (cl 26).

Deduction and cumulative costs

• NSW Trustee may deduct any cost payable under Part 2 from money belonging to the estate and held by NSW Trustee or under NSW Trustee’s control (cl 33). Costs payable under this Part are additive to any other costs under this Part and to any other cost payable from the estate (cl 31).

Rights to charge particular kinds of fees

• The Regulation authorises specific categories of charges:
  • Monthly administration account and audit fee up to 0.1 fee units per account (cl 6).
  • Advice about financial matters up to 2.75 fee units per hour (cl 7).
  • Real-estate inspections: up to 1.5 fee units per hour for inspection/valuation or preparation of specifications; second/subsequent inspections capped at 1.16 fee units per hour (cl 9).
  • Legal advice and proceedings costs may be charged to the estate, and may be charged on a for‑profit basis (cl 10(1)-(2)).
  • Management of common fund: 0.35% per annum of value (cl 11).
  • Trust administration: initial once-only fee on asset value using a sliding percentage schedule and an annual fee of 0.7% (cl 20).
  • Estate administration: once-only fee on asset value using a sliding percentage schedule and income-based fees (cl 21).
  • Locating beneficiaries: fee up to 5% of net estate after payment of original claims where locating is necessary (cl 22(1)-(2)).
  • Managed-person direct management: establishment fee 1% subject to min/max, and annual management fee 1.4% up to a maximum (cl 26).
  • Private management: fixed fee units for establishment and for filing/examination of accounts; NSW Trustee must certify amounts and payer (cl 27).
  • Fees for drafting wills up to 60 fee units, enduring guardianship 3 fee units, power of attorney 5 fee units, plus disbursements (cl 28).

Administrative duties on third parties in mental-health contexts

• The MHRT must complete an order notice in a form specified in Schedule 2 when it orders an estate to be managed (cl 42). The medical superintendent must give written notice to NSW Trustee within seven days of an order/interim order and attach a copy of the order (cl 43). The medical superintendent must notify NSW Trustee as soon as practicable of discharge, transfer, absence, return from leave, and death of a patient who is or was a managed person (cl 44).

Procedural rights for affected persons

• Schedule 1 sets out that detained persons have the right to representation before the Tribunal and the right to appeal to the Supreme Court if they disagree with a Tribunal decision that NSW Trustee manage their property and affairs. Part 2 of Schedule 1 extends similar information to relatives and friends, including the appeal right. The Regulation also expressly prescribes that actions by NSW Trustee under Division 1 of Part 4.5 of the Act are reviewable by NCAT (cl 45).

GST and fees

• NSW Trustee may add GST to fees in addition to costs (cl 34(1)), but not in a way that causes the total charged to be higher than 10% above the maximum amount otherwise payable (cl 34(2)). Clause 34(3) makes this express power operative despite any other limit in the Part.

Certification and copies

• A copy of a will may be certified as a true copy of the will by any person aged 18 or over for the purposes of section 80(1) of the Act (cl 46).

These duties and rights allocate fee-setting powers to NSW Trustee while providing procedural protections for detained persons and review mechanisms through NCAT and the Supreme Court where applicable.

The Regulation does not create standalone criminal penalties for non-compliance by NSW Trustee or third parties. Instead, it establishes civil entitlements, deductive powers and review mechanisms to enforce compliance and resolve disputes.

Deduction and collection enforcement

• The primary enforcement mechanism for fees is statutory deduction: NSW Trustee may deduct any cost payable under Part 2 from money belonging to the estate that it holds or controls (cl 33). That is an administrative enforcement tool enabling automatic recovery from estate funds rather than a penal sanction.

Caps, limits and statutory constraints

• Many fees are expressed as “not exceeding” particular fee-unit amounts, percentages, or rates (for example cl 6, cl 7, cl 9, cl 14). These caps constrain NSW Trustee’s charging power and provide a benchmark for reviewing whether a fee charged is within the permitted limit. Where fees are charged beyond a cap, an affected person would rely on statutory review or civil avenues to challenge the charge, though the Regulation itself does not specify a penalty for charging more than the cap.

Review and appeal mechanisms

• Decisions made by NSW Trustee under Division 1 of Part 4.5 of the Act are prescribed for review by NCAT (cl 45). Schedule 1 explicitly notes a right to appeal to the Supreme Court against MHRT decisions that NSW Trustee manage an estate (Schedule 1, Parts 1-2). These review and appeal mechanisms are the primary legal enforcement avenues available to persons aggrieved by NSW Trustee’s decisions or fees.

Administrative obligations on third parties and implied consequences

• The Regulation imposes duties on medical superintendents to notify NSW Trustee within specified timeframes (cl 43-44). The Regulation does not specify statutory penalties for failure to notify; enforcement in practice would occur through departmental oversight, professional accountability, or consequential adverse administrative effects (for example, NSW Trustee being deprived of information necessary to manage an estate).

GST cap as a control on fee escalation

• Clause 34(2) constrains the extent to which GST may increase the final amount charged, capping the GST-inclusive amount to not more than 10% above the maximum amount otherwise payable. While this does not create a penalty per se, it restricts the revenue effect of GST add-ons.

Minimum fees and mandatory deductions

• Certain minima (for example, the 5 fee unit minimum for small calculated estate administration fees under cl 21(3)) prescribe enforcement in the sense that where the calculated fee is below the minimum NSW Trustee may instead charge the minimum. This shifts enforcement from proof of reasonableness to application of an objective floor.

In summary, the Regulation enforces its financial rules primarily through statutory authorisation of deduction and through external review avenues (NCAT, Supreme Court). It sets numerical constraints rather than criminal sanctions; the effective enforcement pathway for a person disputing a charge is review or appeal under the Act and the general administrative law framework.

This Regulation operates as subordinate legislation under the Act and references and interlocks with other statutory regimes. The Regulation both implements Act provisions and relies on cross-references.

Relationship to the NSW Trustee and Guardian Act 2009

• The Regulation implements fee and procedural details under the Act, including fees authorised by section 111 of the Act (cited in cl 7, cl 20, cl 28A and cl 28). Numerous clauses directly state that they apply to functions authorised by particular Act provisions (for example cl 5 applies when NSW Trustee acts under s 11(1) or (2) of the Act). The Regulation thus operationalises the Act’s fee-making power and procedural obligations.

Interaction with the Interpretation Act 1987

• Clause 3 notes that the Act and the Interpretation Act 1987 contain definitions and other provisions that affect interpretation and application of this Regulation (cl 3 note). That means statutory interpretation and common interpretative principles under the Interpretation Act apply.

Cross-reference to Commonwealth GST law

• The Regulation defines GST by reference to the Commonwealth A New Tax System (Goods and Services Tax) Act 1999 (cl 4). Clause 34 operates alongside Commonwealth GST law: GST may be added to fees but the Regulation constrains the GST-inclusive amount to no more than 10% above the maximum without GST (cl 34(2)). Practitioners must therefore apply both Commonwealth GST rules and this Regulation’s cap when invoicing or calculating recoverable GST.

Interaction with Mental Health Act 2007 and MHRT processes

• Words and expressions used in Part 4 have the same meaning as in the Mental Health Act 2007 (cl 40). The Regulation prescribes the information MHRT must provide and the form of particular notices (cl 41-42; Schedule 1 and 2), and it imposes notification duties on medical superintendents that reflect the interface between detention/mental-health supervision and estate management (cl 43-44). Schedule 1 also records the right of appeal to the Supreme Court against MHRT determinations, which draws procedural connection to superior court jurisdiction.

Supreme Court Rules and other court rules

• Notices and elections under Part 3 must be published in the same way as notices under rule 93 in Part 78 of the Supreme Court Rules 1970 (cl 37). Clause 36 prescribes amounts to be used in specified sections of the Act, affecting when certain procedures under the Act apply.

Reciprocal-arrangement law

• The Regulation prescribes New Zealand as a reciprocating State for the purposes of section 35 and section 81 of the Act (cl 39, cl 49). Practitioners dealing with intestacy or interstate protected-person matters must treat New Zealand accordingly under the Act and this Regulation.

Local Court registrars and other tribunal/agency interactions

• Clause 19 allows NSW Trustee to appoint Local Court registrars as agents and charge remuneration back to the estate. That creates operational interaction with Local Court processes and registries.

Administrative law review frameworks

• The Regulation prescribes NCAT reviewability for specified decisions (cl 45), which brings administrative law principles, such as jurisdictional error, merits review standards, and review procedure, into play.

Overall, the Regulation supplements and operationalises the Act while presupposing and relying on other laws , notably the Mental Health Act, the GST Act, court rules, and general administrative law. Practitioners must apply the Regulation in the context of these overlapping statutory and procedural architectures.

The Regulation contains explicit amendment annotations embedded in the text and schedule entries. The operative commencement date is 1 September 2017 (cl 2), replacing the 2008 Regulation (cl 2 note). The text also shows later amendments; the Regulation has been updated at least in 2021 and 2025 as recorded in the marginal notes. The key amendment markers and their locus in the text are:

• 2021 amendments: Several clauses were amended or substituted by the 2021 instrument identified as “2021 (767), Sch 1”. Notable insertions/substitutions include:

  • Clause 11: fee rate for management of common fund , annotated “Am 2021 (767), Sch 1[1]” (cl 11).
  • Clause 28: fees for drafting wills, powers of attorney and enduring guardianship , “Subst 2021 (767), Sch 1[2]” (cl 28).

• 2025 amendments: Multiple amendments are annotated as “Am 2025 (124), Sch 1” with bracketed item numbers identifying affected provisions. The 2025 instrument made extensive changes throughout the Regulation, including:

  • Clause 3 definition footnote records amendments Am 2025 (124), Sch 1[1] [2].
  • Clause 6 (administration account and audit fee) amended, see cl 6 note “Am 2025 (124), Sch 1[3]”.
  • Clause 7 (fee for advice about financial matters) substituted or amended, see cl 7 note “Subst 2025 (124), Sch 1[4]”.
  • Clause 9 real estate inspection/valuation caps amended (cl 9 notes [5][6]).
  • Many fees in Division 3 and Division 4 show 2025 amendments: cl 14, cl 15, cl 16, cl 17, cl 20, cl 21, cl 23, cl 24, cl 25, cl 26, cl 27, cl 29 (see in-text annotations).
  • Clause 28A was inserted in 2025 (cl 28A “Ins 2025 (124), Sch 1[20]”).
  • Clause 28 was further amended in 2025 for fee caps and disbursement recovery (cl 28 “Subst 2021 (767), Sch 1[2]; 2025 (124), Sch 1[21]-[23]”).
  • Clause 31, 32, 33, 34 show no specific amendment notes but operate in the context of the amended fee schedules.
  • Schedule 3 (Calculation of fee units) was inserted or amended in 2025 (Sch 3: Ins 2025 (124), Sch 1[30]).

Schedule 3 changes are significant because they fix the fee unit at $100 for 2024-25 and 2025-26 and then provide an indexation mechanism tied to the CPI for Sydney for subsequent years (Sch 3 cl 2(1)-(4)). The schedule also prescribes rounding rules (Sch 3 cl 2(2) and cl 3) and a publication duty for the CEO (Sch 3 cl 4).

Where the marginal notes show specific clauses amended by the 2025 instrument, practitioners should consult the 2025 schedule references identified in the Regulation to see the precise textual amendments. The annotations in the text identify the clauses and the schedule items in the amending instruments.

Because the Regulation is subordinate legislation, any future Act amendments that change NSW Trustee’s statutory fee-making powers (for example changes to s 111 of the Act) would require corresponding adjustments in the Regulation to align the numeric detail with any new Act framework. The Regulation’s footnotes and in-text amendment annotations provide a traceable record of these more recent changes, but users should confirm they are working from the consolidated, current text on the NSW legislation website.

The Regulation text supplied does not include judgments, case citations or a litigation history. There are, however, procedural and review mechanisms embedded that create avenues for disputes to be litigated or reviewed, and those avenues define the likely contours of future litigation.

Reviewable decisions and tribunals

• Decisions by NSW Trustee under Division 1 of Part 4.5 of the Act are prescribed for NCAT review (cl 45). That establishes NCAT as the primary merits-review tribunal for many estate-management decisions made by NSW Trustee. Parties disputing fee levels, decisions to charge particular fees, or administrative decisions affecting the management of an estate may bring applications to NCAT under the Act and the tribunal’s rules. The Regulation itself does not record any case law interpreting its provisions.

Appeals from MHRT to the Supreme Court

• Schedule 1 expressly states that a person whose property and affairs are to be managed by NSW Trustee on the basis of an MHRT decision has the right to appeal to the Supreme Court (Schedule 1, Part 1 and Part 2). That creates a direct pathway for judicial determination of MHRT decisions on the point of estate management, and hence for challenge to orders referring management to NSW Trustee. The Regulation does not provide statistics or cases on such appeals.

Potential judicial themes

• Based on the Regulation’s content, the types of legal questions likely to arise in litigation or review include:
  • Whether particular fees charged are within the statutory caps and consistent with “just and reasonable” determinations where the Regulation allows discretion (cl 12, cl 32).
  • Whether deductions from estate funds are authorised and properly calculated (cl 33).
  • The application and interpretation of the fee-unit indexation and rounding rules (Sch 3 cl 2-4).
  • Whether NSW Trustee’s decisions are properly characterised as falling within Division 1 of Part 4.5 for NCAT jurisdiction (cl 45).
  • Procedural compliance by MHRT and medical superintendents with notice duties and whether failure to notify has legal consequences (cl 42-44; Schedule 1).

Because the text contains no reported cases, practitioners should assume the Regulation is untested in relation to many of the discretions it creates. Where disputes concern fee reasonableness, statutory caps or deduction rights, the appropriate practical routes are NCAT review and, where MHRT orders are in issue, Supreme Court appeal as referenced in Schedule 1. Users should check court and tribunal databases for any decisions interpreting these specific Regulation provisions.

This Regulation contains several practical traps for practitioners, administrators, managers and beneficiaries. These are specific mechanics that can have non-obvious financial or procedural consequences.

Fee-unit indexing and publication does not suspend effect until publication

• Schedule 3 requires the CEO to notify Parliamentary Counsel and publish the fee unit after the March-quarter CPI is released (Sch 3 cl 4). However, the indexing change operates independently of publication (Sch 3 cl 4(2)). Practitioners must not rely on the absence of a published figure to assume a previous fee unit applies.

Cumulative costs increase estate erosion

• Clause 31 makes costs cumulative: multiple fees under the Part may apply to a single estate and are added to any other costs payable from the estate. This interaction can lead to greater erosion of estate capital and income than might be apparent if one only considers a single fee type in isolation.

Broad discretion to set fees where not specified

• Clause 12 allows NSW Trustee to charge for services not otherwise mentioned in the Regulation at an amount agreed or, absent agreement, that NSW Trustee determines to be “just and reasonable”. Clause 32 delegates determination in particular cases to NSW Trustee. These provisions create wide discretion and potential variability in fees across estates.

Deductions from estate funds are administratively authorised

• Clause 33 authorises NSW Trustee to deduct costs from any money belonging to an estate that is held or under NSW Trustee’s control. That power bypasses the need for separate recovery actions and materially affects beneficiaries’ available proceeds.

GST is permitted but capped

• Clause 34 allows NSW Trustee to add GST to fees, but not beyond 10% of the maximum amount payable apart from GST. Practitioners should ensure GST calculations do not result in a GST-inclusive figure exceeding that statutory cap.

Legal costs may be charged on a profit basis

• Clause 10(2) expressly permits NSW Trustee to charge legal costs to an estate on a for-profit basis. That diverges from the usual expectation that statutory office holders charge cost-recovery rates; legal work in particular could be remunerated to include profit margin unless constrained by other law or practice.

Minimum fee floors and calculated fees

• For estate administration under cl 21(2), if the calculated once-only fee is less than 5 fee units, NSW Trustee may instead charge a minimum 5 fee units (cl 21(3)). This can affect small estates where a percentage-based calculation might otherwise produce a very low dollar figure.

Who pays and from what pot

• Some fees are payable out of a beneficiary’s share (cl 14(2)); others are payable from gross income or capital of the trust or estate (cl 21(4)). The Regulation also permits recovery from specific shares where inquiries or advertising are necessary to locate beneficiaries (cl 22). Practitioners must track both the payer and the fund from which payment is permitted.

Indexation formula details are not plainly reproduced in the text

• Schedule 3 contains an embedded formula image for post‑2025 indexation that is not textually reproduced in the plain clauses provided. The schedule does specify A and B (CPI for the March quarter in the previous financial year and CPI for March quarter 2025 respectively), but users should consult the official consolidated text on NSW legislation to see the formula in human-readable form and verify computations.

Notification timing terms vary

• The medical superintendent must notify NSW Trustee of an MHRT order within seven days and attach a copy (cl 43(1)-(2)), but must notify “as soon as practicable” for other events (cl 44). The latter phrase is flexible and may generate disputes about timeliness affecting NSW Trustee’s ability to manage the estate.

Professional services may be by agreement

• Clause 28A allows fee arrangements by agreement for functions under s 11(3)-(3B) of the Act; this means bespoke fee arrangements are permitted and may depart from the standard schedule. Practitioners must ensure any agreed fees are properly documented and compliant with the Act.

Certification of will copies by any adult

• Clause 46 permits any person aged 18 or over to certify a copy of a will as a true copy for the Act’s purposes. That is broader than some practitioners might expect and may affect reliance on certified copies in probate and administration contexts.

Reciprocal state designations are limited

• The Regulation prescribes New Zealand as a reciprocating State for certain purposes (cl 39, cl 49). If a practitioner expects mutual recognition with other jurisdictions, they must verify whether those jurisdictions are prescribed.

Taken together, these “gotchas” show that fee computation, allocation and recoverability are the principal practical risks, along with timing and administrative compliance obligations that affect the availability of funds and the ability of beneficiaries and managers to challenge fees.

This final section provides concrete steps and checklists for the principal actors affected by the Regulation to operationalise compliance.

For NSW Trustee (agency implementation responsibilities)

• Maintain the fee unit: Calculate the fee unit annually in accordance with Schedule 3. For 2024-25 and 2025-26 the unit is $100 (Sch 3 cl 2(1)(a)). For subsequent years apply the Schedule 3 formula and rounding rules (Sch 3 cl 2(1)(b), cl 2(2), cl 3). Publish the result on the NSW Trustee website and notify Parliamentary Counsel as soon as practicable after the March-quarter CPI is published (Sch 3 cl 4).
• Fee schedules and client disclosure: Ensure published client materials and internal billing systems reflect the fee caps, percentage rates and hourly limits in Part 2 (for example cl 6-11, cl 20-21, cl 26-27). Where fees are set by agreement (cl 28A, cl 30), record a written agreement signed by the client or principal.
• Account and deduction controls: Implement internal accounting procedures to ensure that deductions under cl 33 are properly authorised, recorded and traceable to the specific clause authorising the charge. Track cumulative costs per cl 31 and ensure accurate aggregation.
• GST compliance with statutory cap: When adding GST to a fee, ensure the GST-inclusive amount does not exceed 10% above the maximum amount otherwise payable (cl 34). Maintain GST invoices consistent with Commonwealth GST requirements and the Regulation’s cap.
• Certification and communication for managed estates: For private managers (cl 27), certify fees payable, name the person required to pay, and specify payment timing in writing (cl 27(3)). For activities requiring court orders (cl 17), follow any directions of the court regarding fees.
• Recordkeeping for trust and estate clients: For trusts and estates where once-only and annual fees apply (cl 20-21), keep contemporaneous valuations and calculations showing the asset value used, dates of valuation, and the basis for annual calculations.
• Dispute and review handling: Establish an internal process for dealing with requests for fee waivers, remissions or reductions under section 111(3) of the Act (the Regulation notes the Act confers that discretion, cl 28 note), and prepare files for potential NCAT review or Supreme Court appeal where applicable (cl 45; Schedule 1).

For private estate managers and trustees (third-party managers)

• Check NSW Trustee certification: If NSW Trustee certifies a fee payable under cl 27(2)(b), ensure the certification is obtained and payment made within the time specified (cl 27(3)(c)).
• Account for deduction rights: Be aware that NSW Trustee can deduct fees from estate funds it controls (cl 33). If you hold funds outside NSW Trustee’s control, agreements should specify payment arrangements to avoid inadvertent breach.
• Understand who bears costs: For fees charged against beneficiary shares (cl 14(2)), confirm who is expected to discharge fees and whether the estate or the beneficiary’s share is the appropriate fund.

For legal practitioners advising clients

• Verify fee calculations: When advising executors, administrators or beneficiaries, check fee calculations against the specific clauses, and ensure minima and maxima are applied (for example cl 21(2)-(3) and cl 26).
• Challenge or review strategies: If a client wishes to challenge a fee, consider NCAT review for decisions under Division 1 of Part 4.5 (cl 45) or Supreme Court appeal where MHRT ordering procedures are relevant (Schedule 1). Prepare for arguments on statutory interpretation, reasonableness, and adherence to caps and rounding rules.
• GST and tax treatment: Advise clients how GST interacts with fees and ensure invoices and GST recovery reflect cl 34 constraints and Commonwealth GST law.

For medical superintendents and MHRT officers

• Timely notices: When an MHRT order or interim order requires an estate to be subject to management, complete the Schedule 2 notice and ensure the medical superintendent provides written notice to NSW Trustee within seven days, attaching a copy of the order (cl 42; cl 43(1)-(2)).
• Ongoing event reporting: Notify NSW Trustee as soon as practicable of discharge, transfer, absence, return from leave, or death of a patient who is or was a managed person (cl 44). Set up local protocols and record-keeping to ensure these notifications are sent promptly.
• Information to detained persons and relatives: Provide the information prescribed in Schedule 1 Parts 1 and 2 to detained persons and nearest relatives, including the right to legal representation and the right to appeal to the Supreme Court (Schedule 1).

For beneficiaries and persons using NSW Trustee services

• Check fee caps and charge basis: Before consenting to NSW Trustee acting as executor, trustee or manager, obtain written information on applicable fees and the fee unit then in force, including whether fees will be charged once-only, annually, on income, or against capital (cl 20-21; Sch 3).
• Monitor estate accounts: Request periodic accounts and inspect entries for administration fees, legal costs charged on a for‑profit basis, and any deductions claimed under cl 33. Where costs appear excessive or outside statutory caps, exercise review rights under NCAT (cl 45) or seek legal advice.
• Be alert to managed-person arrangements: If a person is detained under the Mental Health Act, they and their relatives should be informed about NSW Trustee’s potential role and rights of appeal (Schedule 1). If an order is made, review the Schedule 2 notice and consider whether to appeal to the Supreme Court in the timeframe provided by procedural rules.

Operational checklist (practical)

• Confirm current fee unit for the financial year (Sch 3 cl 2-4).
• For any charge, identify the precise statutory clause authorising it and confirm the applicable cap or percentage (e.g. cl 6-11, cl 20-21, cl 26).
• Calculate GST and ensure the GST-inclusive amount does not exceed the statutory cap (cl 34).
• Record any agreement on fee amounts in writing where the Regulation permits agreement-based fees (cl 28A, cl 30).
• Ensure deductions from estate funds are authorised, documented and permitted under cl 33.
• Keep contemporaneous valuations and basis-of-calculation documents for trust and estate asset values used to compute percentage fees (cl 20-21).
• For MHRT and medical superintendents: dispatch statutory notices within the timeframe required and keep copies (cl 42-44; Schedule 1).

Adhering to these steps will align actors with the Regulation’s numeric mechanisms, notice duties and review avenues. Where novel questions arise (for example, scope of “just and reasonable” fees under cl 12 or cl 32), early case-specific advice and consideration of NCAT merit-review or court appeal pathways is advisable.