sec.36Powers of public trustee pending grant

### sec.36 Powers of public trustee pending grant When any person dies or has heretofore died, whether testate or intestate, and whether the public trustee is entitled to a grant of an order to administer or some person other than the public trustee is appointed executor or is entitled to letters of administration, the public trustee may, until administration is granted, exercise with respect to the estate of the deceased person all such powers and authorities and do all such acts and things, other than the distribution of any part of the estate to the person beneficially entitled, as the public trustee would have or could exercise or do if the deceased had died intestate and the public trustee had obtained an order to administer. However, the public trustee may only sell, exchange, mortgage or partition a part of the property, or let or lease a part of the property (other than under a periodic tenancy from year to year or for a shorter period or a fixed period of not longer than 1 year), with the court’s leave. In subsection (1) — acts and things includes withdrawing an amount from an account of the deceased person with a financial institution. Despite subsection (1A) , the public trustee may sell, without the court’s leave, a part of the personal estate if the public trustee considers— that the property is perishable, likely to deteriorate or likely to decrease substantially in value if kept; or that, for another reason, it is in the estate’s interest that the public trustee immediately dispose of the property. Before the public trustee first acts under this section, the public trustee shall give notice in writing to any person in Queensland known to the public trustee, who (not being under a legal disability) would be entitled to obtain probate or letters of administration, informing such person that the public trustee intends to so act unless such person forthwith proceeds to apply for probate or letters of administration. If such person does not, within 21 days after the posting of such notice, give notice, in writing, to the public trustee that the person intends to apply for probate or letters of administration, or if such person gives such notice but fails for 14 days thereafter to apply therefor, or makes such application and it is refused, then, unless the court otherwise orders, the public trustee may proceed to exercise any of the powers and authorities given by this section. If more persons than 1 are entitled to take out probate or letters of administration, it shall be sufficient to give notice to 1 of such persons only. Where it is not actually known to the public trustee that there is in Queensland any person entitled to obtain probate or letters of administration or where, in the opinion of the public trustee, there are circumstances of emergency, the public trustee may exercise the powers and authorities given by this section without giving such notice. When the public trustee is acting under this section— the public trustee is not to be deemed to be or be liable as an executor de son tort ; and the public trustee shall have the same rights to be paid or to retain commission and other charges out of the estate of the deceased as if an order to administer had been granted to the public trustee; and all expenses incurred by and all payments due to the public trustee shall be a first charge upon the property of the deceased person; and it shall not be necessary for the public trustee to register with any registering authority the public trustee’s authority so to act, and the recital by the public trustee in any instrument that the public trustee is acting pursuant to this section shall be sufficient evidence of the public trustee’s authority to execute that instrument. s 36 amd 1994 No. 24 s 3 (1) sch ; 2007 No. 37 s 162 sch (sec.36-ssec.1) When any person dies or has heretofore died, whether testate or intestate, and whether the public trustee is entitled to a grant of an order to administer or some person other than the public trustee is appointed executor or is entitled to letters of administration, the public trustee may, until administration is granted, exercise with respect to the estate of the deceased person all such powers and authorities and do all such acts and things, other than the distribution of any part of the estate to the person beneficially entitled, as the public trustee would have or could exercise or do if the deceased had died intestate and the public trustee had obtained an order to administer. (sec.36-ssec.1A) However, the public trustee may only sell, exchange, mortgage or partition a part of the property, or let or lease a part of the property (other than under a periodic tenancy from year to year or for a shorter period or a fixed period of not longer than 1 year), with the court’s leave. (sec.36-ssec.1B) In subsection (1) — acts and things includes withdrawing an amount from an account of the deceased person with a financial institution. (sec.36-ssec.2) Despite subsection (1A) , the public trustee may sell, without the court’s leave, a part of the personal estate if the public trustee considers— that the property is perishable, likely to deteriorate or likely to decrease substantially in value if kept; or that, for another reason, it is in the estate’s interest that the public trustee immediately dispose of the property. (sec.36-ssec.3) Before the public trustee first acts under this section, the public trustee shall give notice in writing to any person in Queensland known to the public trustee, who (not being under a legal disability) would be entitled to obtain probate or letters of administration, informing such person that the public trustee intends to so act unless such person forthwith proceeds to apply for probate or letters of administration. (sec.36-ssec.4) If such person does not, within 21 days after the posting of such notice, give notice, in writing, to the public trustee that the person intends to apply for probate or letters of administration, or if such person gives such notice but fails for 14 days thereafter to apply therefor, or makes such application and it is refused, then, unless the court otherwise orders, the public trustee may proceed to exercise any of the powers and authorities given by this section. (sec.36-ssec.5) If more persons than 1 are entitled to take out probate or letters of administration, it shall be sufficient to give notice to 1 of such persons only. (sec.36-ssec.6) Where it is not actually known to the public trustee that there is in Queensland any person entitled to obtain probate or letters of administration or where, in the opinion of the public trustee, there are circumstances of emergency, the public trustee may exercise the powers and authorities given by this section without giving such notice. (sec.36-ssec.7) When the public trustee is acting under this section— the public trustee is not to be deemed to be or be liable as an executor de son tort ; and the public trustee shall have the same rights to be paid or to retain commission and other charges out of the estate of the deceased as if an order to administer had been granted to the public trustee; and all expenses incurred by and all payments due to the public trustee shall be a first charge upon the property of the deceased person; and it shall not be necessary for the public trustee to register with any registering authority the public trustee’s authority so to act, and the recital by the public trustee in any instrument that the public trustee is acting pursuant to this section shall be sufficient evidence of the public trustee’s authority to execute that instrument. - (a) that the property is perishable, likely to deteriorate or likely to decrease substantially in value if kept; or - (b) that, for another reason, it is in the estate’s interest that the public trustee immediately dispose of the property. - (a) the public trustee is not to be deemed to be or be liable as an executor de son tort ; and - (b) the public trustee shall have the same rights to be paid or to retain commission and other charges out of the estate of the deceased as if an order to administer had been granted to the public trustee; and - (c) all expenses incurred by and all payments due to the public trustee shall be a first charge upon the property of the deceased person; and - (d) it shall not be necessary for the public trustee to register with any registering authority the public trustee’s authority so to act, and the recital by the public trustee in any instrument that the public trustee is acting pursuant to this section shall be sufficient evidence of the public trustee’s authority to execute that instrument.