Public Trustee Regulations 2025

Common fund. Under section 29 of the Act, the Public Trustee may pool money from various estates and trusts into a common fund for investment. Schedule 1 caps commission on capital at 1% and on income at 5%. This is relatively low compared to Schedule 2 rates, reflecting the passive, pooled nature of the investment service. In practice, the trustee benefits from economies of scale; the regulation does not require the Public Trustee to pass those savings to beneficiaries.

Commission on capital (sliding scale). Schedule 2 Part 1 uses a tiered percentage structure that declines as the estate value increases. For an estate worth $200,000, the maximum commission is $8,000 (4%). For an estate worth $600,000, the maximum is $14,000 (4% on $200k, 3% on $200k, 2% on $200k), an effective rate of about 2.33%. For an estate worth $1 million, the maximum is $18,000 (an effective rate of 1.8%). This design rewards larger estates with a lower marginal rate. The rationale, if any, is not stated in the regulations, but may reflect the idea that administration costs have a fixed component and smaller estates are more labour-intensive per dollar. The effect is that the proportional burden falls more heavily on smaller estates, which are more likely to be composed of modest assets.

Commission on income. Schedule 2 Part 2 sets two income commission rates: 5% on non-rent income and 7.5% on rent. Rent attracts a higher rate because of ongoing collection and property management work. However, if the Public Trustee employs an agent who is paid a commission, the rent commission is reduced to 2.5%. This creates an incentive for the Public Trustee to use external agents for rent collection if it can capture the full 7.5% while paying the agent less, or to keep the work in-house and earn the higher rate. The regulation does not prescribe how the agent’s commission interacts with the trustee’s fee; it only caps the trustee’s charge.

Additional commission for beneficiary searches. Clause 10 permits an additional commission of up to 10% of the estate’s value for work in identifying a beneficiary or ascertaining next of kin. This is a significant uplift. In a large estate, that could amount to tens of thousands of dollars for what may be a discrete administrative task. The cost is borne either by the estate or by the specific beneficiary’s share. There is no requirement that the Public Trustee make reasonable efforts before charging this additional commission, nor any oversight mechanism short of court challenge.

Valuation of unrealised property. Clause 7 states that the value of unrealised property is, unless a court directs otherwise, the price the Public Trustee believes the property would realise if sold in the open market. This gives the Public Trustee a degree of unilateral valuation power. If distribution is postponed beyond 24 months by an intervening interest, the valuation date shifts to the determination of that interest. This may produce a higher or lower commission base depending on market movements, with no adjustment mechanism for beneficiaries.

Timing of charges. Clause 9 allows commission on money to be charged when the Public Trustee receives the money, not at the end of administration. This means beneficiaries may see capital commission deducted long before the estate is finalised. For income, if a business is carried on, commission cannot be charged until net annual trading profit is ascertained. Otherwise, income commission can be charged on receipt.

Transitional protection. The transitional provision in Schedule 3 preserves pre-1995 arrangements. This is a narrow grandfather: only arrangements made before the 1995 Act commenced are protected. All later arrangements are subject to the new maximums and methods.

The regulations directly affect any person who deals with the Public Trustee of South Australia in a fiduciary or administrative capacity. The categories of affected persons break down into several groups.

Beneficiaries of deceased estates. Every beneficiary of an estate administered by the Public Trustee will have capital commission deducted from their share, calculated on realised proceeds, collected money, and unrealised property transferred in kind. The sliding scale means that beneficiaries of smaller estates pay a higher effective rate. Where a surviving spouse or domestic partner receives a shared home or household effects, the commission is halved, providing some relief.

Beneficiaries of trusts. Any trust fund held by the Public Trustee (alone or jointly) is subject to the same sliding scale on capital and the 5% or 7.5% on income. Trusts that generate rental income face the higher 7.5% rate unless an agent is involved.

Protected persons (under aged and infirm property legislation or guardianship and administration orders). Their estates are managed or administered by the Public Trustee. Commission is charged on realised assets, money collected, and on unrealised property at the conclusion of management. These persons often have ongoing needs, and the commission directly reduces the funds available for their care.

Persons with court-ordered payments. If a court orders money to be paid to the Public Trustee on behalf of a party, the standard sliding scale applies. However, if a portion is directed to be paid immediately, that portion attracts a maximum of 1% - a substantial discount that encourages prompt distributions.

Persons who appoint the Public Trustee as agent or attorney. Commission on realised assets and collected money follows the sliding scale. For services not otherwise dealt with, the rate is agreed with the appointor. This introduces a contractual element, but the regulation gives the Public Trustee a default fallback if no agreement is reached.

Recipients of specific listed welfare payments. Schedule 2 clause 8(4) lists old age, invalid, superannuation, war and service pensions, sick pay, maintenance payments for divorced or protected persons, and unemployment/sickness benefits from the Department of Social Services. Income commission on these payments is limited to the general rates (5% non-rent, 7.5% rent). There is no specific exemption or lower cap, meaning the Public Trustee can take up to 5% of a protected person’s pension or maintenance. This is a notable cost for vulnerable individuals.

Next of kin and unknown beneficiaries. Clause 10 directly targets unidentified beneficiaries: the estate or the beneficiary’s share may be charged an extra 10% for investigative work. This affects persons who come forward after genealogy searches; they find their inheritance reduced by up to 10% to cover the cost of that search.

The Public Trustee itself. The regulations are the legal basis for its revenue. It has discretion to charge below the maximums, and the ability to charge commission at multiple points (capital on receipt, income on receipt, additional search commission). This creates an incentive structure: the Public Trustee may prefer to charge the maximum where possible, subject to any policy guidelines or reputational constraints. The regulations impose no explicit duty to minimise commission or to act in the best financial interests of beneficiaries when setting rates.

Duty to charge within maximums. The Public Trustee must not exceed the maximum rates and amounts set out in Schedules 1 and 2. Under regulation 4(3), it may determine the actual rate in a particular case subject to those limits. This is a power, not a duty to charge the maximum, but nothing compels it to charge less. Beneficiaries have a right to challenge a charge that exceeds the statutory maximum, but the regulations do not establish a complaints mechanism or independent review.

Right (of Public Trustee) to determine value of unrealised property. Clause 7 gives the Public Trustee the right to set the valuation for unrealised property unless a court directs otherwise. The valuation is the price it believes the property would realise if sold in the open market. This is a unilateral power; there is no requirement for an independent valuation or to give reasons to beneficiaries. If valuation is delayed by a life interest or other intervening interest beyond 24 months, the valuation date shifts to when that interest ends. Beneficiaries have a right to contest the valuation by applying to a court, but that is costly.

Right to charge commission on receipt. Clause 9 allows the Public Trustee to charge commission when money is received, not at distribution. This accelerates cash flow for the Public Trustee but means beneficiaries may see capital deductions early. There is no right to defer commission until final accounting, unless the Public Trustee chooses to do so.

Right (limited) to agree commission for agency/attorney services. If the Public Trustee acts as agent or attorney, clause 4 provides that commission on services not otherwise dealt with is at a rate agreed with the appointor. This introduces a contractual element, but for standard capital and income items the sliding scale applies regardless of agreement.

Prohibition on double charging capital commission. Clause 9(3) states that commission on capital must not be charged more than once during the course of administration of an estate, trust, or fund. However, this does not prevent the Public Trustee from charging both capital commission (on the corpus) and income commission (on earnings) each year or as received. The total commission over the life of an administration can be substantial.

No duty to minimise costs. Unlike a private trustee’s fiduciary duty to act in the best interests of beneficiaries and to keep costs reasonable, the legislation does not impose an explicit duty on the Public Trustee to minimise commission or to choose a lower rate when reasonable. The only constraint is the statutory maximum. Beneficiaries must rely on the general law of trusts or administrative law to challenge unreasonable fees.

Right of the Public Trustee to additional commission for beneficiary searches. Clause 10 is a discretionary power, not a duty. The Public Trustee may charge up to 10% of the estate value for identifying beneficiaries or ascertaining next of kin. This can be charged against the estate or against the share of the person to whom the inquiries relate. There is no requirement that the work be necessary or that the cost be proportionate to the effort. A simple genealogy search costing a few hundred dollars could theoretically be charged at 10% of a multi-million dollar estate.

No right of appeal within the regulations. There is no internal review mechanism specified. Any dispute about commission must be taken to court, likely under the Public Trustee Act or general trust law. The regulations do not provide for mediation, arbitration, or administrative review by the Minister.

These regulations are purely permissive and prescriptive; they do not create offences or penalties for non-compliance. Enforcement of the rules governing commission is not handled through criminal sanctions. Instead, the regulatory structure is enforced through the following mechanisms.

Ultra vires challenge. If the Public Trustee charges commission that exceeds the maximum rates or amounts prescribed in Schedule 1 or Schedule 2, that charge is likely unlawful under the Act (section 29(6a) and section 45). A beneficiary or other interested person could apply to the Supreme Court of South Australia for declaratory relief, an accounting, or repayment. The court would determine whether the charge exceeded the statutory authority. Since the regulations fix only maximums, the Public Trustee has room to manoeuvre below that ceiling, but any charge above the maximum is open to challenge.

Judicial review. The Public Trustee is a statutory office holder. Decisions to apply a particular rate within the maximum range could theoretically be reviewed on administrative law grounds if they were made unreasonably, for an improper purpose, or in bad faith. However, the wide discretion in regulation 4(3) makes such challenges difficult. The regulation does not require the Public Trustee to give reasons for its choice of rate, nor to adopt a consistent policy. A beneficiary would need to show that the discretion was exercised arbitrarily or capriciously.

Breach of trust. If the Public Trustee holds property on trust, it owes equitable duties to beneficiaries. While the Act and regulations authorise specific commission charges, equitable principles may impose additional constraints. Overcharging could constitute a breach of fiduciary duty, especially if the commission is disproportionate to the work done. However, the existence of the statutory maximum and the wide discretion means that a court may be reluctant to second-guess the Public Trustee’s business judgment, absent clear evidence of self-dealing or bad faith.

No penalty provisions in the regulations. There are no fines, infringement notices, or criminal penalties for overcharging. The remedy is restitution or surcharge by the Public Trustee, possibly with interest. The cost and complexity of litigation will deter many beneficiaries, especially those with smaller estates, from enforcing their rights. As a practical matter, the Public Trustee’s commission practices are largely self-policing.

Ministerial oversight. Under the Act, the Minister may have general oversight powers, but the regulations do not specify any reporting or approval requirements for commission rates. The Public Trustee is not required to publish its fee schedule or to obtain ministerial approval for charging below the maximums. This creates an accountability gap. The only transparency is by individual request or in estate accounts.

No external audit or complaints body. The regulations do not establish an independent dispute resolution mechanism. The South Australian Ombudsman may have jurisdiction to investigate complaints about administrative actions of the Public Trustee, including fee-setting. Likewise, the Auditor-General could review financial management. But neither is a specialised trustee complaints body. For most beneficiaries, the practical deterrent against excessive fees is the Public Trustee’s own policies and the risk of reputational damage if it systematically charges at the maximum.

Public Trustee Act 1995 (SA). These regulations are made under that Act, specifically sections 29(6a) and 45. Section 29 deals with common funds; subsection (6a) allows regulations to prescribe commission rates for common fund accounts. Section 45 is a general power to prescribe commission for estates under the Public Trustee’s control. The regulations fill in the blanks left by the Act. They do not amend the Act; they operate in its shadow. The Act itself may impose duties on the Public Trustee that are not displaced by the regulations, such as a duty to administer estates with reasonable diligence.

Succession Act 2023 (SA). The regulations carve out one specific scenario: section 75 of the Succession Act vests an intestate estate in the Public Trustee until administration is granted. Commission for such estates is not covered by these regulations (see regulation 4(2) note). The Public Trustee presumably charges under a different regime for that pre-grant holding period, possibly under the Succession Act itself. Clause 3 of Schedule 2 also deals with property delivered under section 91 of the Succession Act, which relates to delivery of property by a personal representative to the Public Trustee when no grant has been applied for. That clause subjects such property to the standard sliding scale.

Aged and Infirm Persons’ Property Act 1940 and Guardianship and Administration Act 1993 (SA). The definition of “estates of protected persons” in Schedule 2 Part 1 clause 1(b) incorporates these Acts. Persons under these Acts have their estates managed by the Public Trustee. The regulations apply the same sliding scale as for deceased estates, with no special lower rates for vulnerable persons, except that certain welfare payments (pensions, maintenance) are capped at the standard income rates. There is no cap on capital commission for these estates, which can consume a significant portion of a protected person’s assets over time.

Court rules and orders. Clause 2 of Schedule 2 addresses money paid to the Public Trustee by order or rule of a court. The sliding scale applies, but if a portion is directed to be paid immediately, that portion attracts only a 1% maximum. This interacts with court practice: a court that wants to minimise fees could order immediate payment of part of the funds to reduce commission on that part.

Common law of trusts. The regulations do not oust the general law. A beneficiary may still bring a claim for breach of trust if the Public Trustee mismanages an estate, irrespective of commission charges. The regulations authorise commission but do not immunise the Public Trustee from liability for negligence or breach of duty. The Public Trustee’s fiduciary duties are supplemented, not replaced, by the regime. For example, if the Public Trustee fails to invest proceeds and loses value, it cannot use the commission to offset its liability.

Other fee regulations. The Public Trustee may charge fees for other services, such as preparing tax returns or property management, that are not commission. These regulations only deal with commission as a percentage of capital or income. The interaction between such fees and commission is not addressed; the Public Trustee could potentially charge both a flat fee for a service and a commission on the same asset if the work falls under different heads. The regulation is silent on double recovery. The general duty to account and the prohibition on profit beyond authorised remuneration would constrain this, but the line is not drawn in the regulations.

Federal laws. Commonwealth social security legislation affects the practical operation of clause 8(4) of Schedule 2. That clause lists various Centrelink-like payments. The commission deducted from those payments reduces the amount received by the protected person. The Commonwealth may adjust payments based on administered income, but the regulations authorise the Public Trustee to take a cut. This is a state law impacting Commonwealth benefit administration, resolved through administrative arrangements rather than explicit legal interaction.

These are the Public Trustee Regulations 2025, made on 31 July 2025 and published in the South Australian Government Gazette on that date. They commenced on the same day they were made. They repeal and replace the Public Trustee Regulations 2010. There is no amendment history because they are brand new. The only transitional provision is Schedule 3 clause 2, which preserves arrangements made before the commencement of the Public Trustee Act 1995. This suggests that the 1995 Act is the baseline and that any commission arrangement made under the 1995 Act or later could be overridden by these regulations. The 2025 Regulations do not apply retroactively to pre-1995 arrangements.

The repealed 2010 Regulations were in force for 15 years. A comparison with the 2025 Regulations would reveal any changes in rates or structure, but the source does not provide the text of the 2010 Regulations. The legislative history note only references the Gazette notice. No parliamentary enactment was involved; these are executive-made regulations. Future amendments will be made by further regulations, typically published in the Gazette.

No litigation is mentioned in the source text. The regulations are too new (2025) to have generated case law. However, the underlying Public Trustee Act 1995 has likely been the subject of court proceedings on commission disputes. The regulations themselves do not create a right to sue; they simply set boundaries. Any litigation would likely involve:

• Beneficiaries challenging whether the Public Trustee exceeded the maximum rate.
• Disputes over the valuation of unrealised property under clause 7.
• Challenges to the additional 10% beneficiary search commission under clause 10, perhaps arguing it is unreasonable or disproportionate.
• Questions about whether a particular arrangement is a pre-1995 arrangement that is grandfathered.

Because the regulations grant broad discretion (e.g., “the Public Trustee may determine the rate or amount in a particular case, subject to that maximum or minimum”), courts are unlikely to interfere unless the decision is manifestly unreasonable or procedurally unfair. The burden on a challenger is high. No South Australian appellate decisions specifically on these regulations are known (as the source provides none), but general trust case law on executor commissions would be relevant.

Commission on pension and benefit income. Many readers might assume that government benefits like aged pensions or disability support are exempt from commission. Clause 8(4) does not exempt them; it merely caps commission on those payments at the standard rates (5% non-rent, 7.5% rent). This means a protected person receiving a pension could have up to 5% deducted by the Public Trustee as commission. That is a direct reduction in living support.

Double charging: capital and income. The prohibition on double charging capital (clause 9(3)) applies only to capital commission. The Public Trustee can still charge capital commission on the corpus (on receipt, on sale, etc.) and also charge income commission each year on interest, dividends, rent, and other returns. Over a long administration, total deductions can far exceed the headline percentage. A $100,000 estate earning 4% annually ($4,000) could attract $200 per year in income commission (at 5%) plus capital commission at settlement. No cumulative cap exists.

Valuation risk for beneficiaries. Clause 7 gives the Public Trustee the power to set the open-market value of unrealised property. If the Public Trustee overvalues an asset, the beneficiary pays more commission on that inflated value. If the asset later sells for less, the commission has already been paid and there is no adjustment. Conversely, if the Public Trustee undervalues, commission is reduced but the beneficiary gets a lower basis for cost. Beneficiaries must scrutinise valuations and may need to seek independent advice before transfer.

Beneficiary identification commission. Clause 10 allows up to 10% of the estate value for identifying beneficiaries. This is a large potential charge for a discrete service. For example, in a $2 million estate, that is up to $200,000 for genealogy work. The charge can be directed against the beneficiary’s share, meaning the person found pays for the search. This creates a perverse incentive: the Public Trustee may be tempted to do minimal work and still charge the maximum, since there is no link between effort and fee beyond the cap. There is no requirement to use a professional genealogist or to justify the cost.

No fixed rates; only maximums. Regulation 4(3) gives the Public Trustee discretion to charge anything up to the maximum. There is no default rate. This means two identical estates could face different commission rates, because one Public Trustee officer decided to charge 4% while another charged 2%. There is no published tariff. This lack of predictability is a compliance uncertainty for beneficiaries and for professionals advising clients. The only way to know the actual rate in advance is to ask the Public Trustee for a quote.

Agent commission interaction. For rent collection, if the Public Trustee uses an agent and pays the agent a commission, the Public Trustee’s own commission is capped at 2.5% (clause 8(5)). But if the Public Trustee collects rent itself, the cap is 7.5%. The Public Trustee therefore may have a financial incentive to collect rent in-house rather than outsource, even if outsourcing would be cheaper or more efficient for the estate. The beneficiary pays the higher rate regardless of which method is used.

No disclosure requirements. The regulations do not require the Public Trustee to provide beneficiaries with a schedule of commission rates before undertaking work, nor to disclose the amount of commission charged until after the fact. Beneficiaries may only learn the full extent of charges when they receive an estate account at distribution. By then, contesting the charges is more difficult.

Grandfathering limited to pre-1995 arrangements. The transitional provision (Schedule 3 clause 2) protects only arrangements made before the 1995 Act commenced. That will be decades ago and few, if any, still exist. All current arrangements are subject to the new caps. This is rarely useful.

Compliance with these regulations is the responsibility of the Public Trustee, not of individual beneficiaries or estates. However, those advising clients who are dealing with the Public Trustee should understand the compliance points.

For the Public Trustee. The primary duty is to ensure that commission charges never exceed the maximums in Schedules 1 and 2. This requires accurate record-keeping of capital amounts, income streams, valuations, and the categories of service. Systems must distinguish between common fund capital (max 1%) and estate capital (sliding scale), between rent and non-rent income, and between standard services and additional services like beneficiary searches. The Public Trustee should document the basis for any exercise of discretion under regulation 4(3), including the reasoning for choosing a particular rate within the band. This is good governance and will assist in defending any challenge. For beneficiary searches, the Public Trustee should record the work done and justify why a particular percentage was chosen, noting the 10% maximum is a ceiling, not a target. Systems must also prevent double charging of capital commission (clause 9(3)). For agency or attorney appointments where services are not otherwise covered, the Public Trustee must reach an agreement on commission with the appointor and document that agreement.

For solicitors and accountants advising estates. When a client’s estate is or may be under the Public Trustee’s administration, practitioners should proactively inquire about the commission rate the Public Trustee intends to apply. The regulation permits negotiation downwards (the maximum only sets an upper bound). Ask for a written estimate of total commission, including capital charges on realised assets, income commission if the estate produces ongoing income, and any potential additional charges (e.g., beneficiary searches). If the Public Trustee proposes a rate at or near the maximum for a simple estate, consider requesting a reduction or challenging the basis. For example, if the estate has low complexity, the 4% rate on the first $200,000 may be unreasonable. The practitioner should note the sliding scale for spouse/domestic partner transfers and ensure that the half-rate is applied if applicable. For transfers of a home to a spouse, the Public Trustee should charge no more than half the standard rate on the spouse’s share.

For protected persons and their representatives. Where a protected person’s estate is managed by the Public Trustee, ongoing income (pensions, maintenance) may be charged at 5%. Family members or guardians should request regular statements showing commission deductions. If the commission is having a material impact on the protected person’s quality of life, consider seeking a reduction from the Public Trustee under its discretionary power. If that fails, apply to the Guardianship Board or the court for directions. For capital commission, the estate is charged when assets are realised or at the conclusion of management. Request an independent valuation of any unrealised property before it is transferred to ensure the Public Trustee’s valuation is fair.

For beneficiaries contesting charges. If a beneficiary believes the Public Trustee has exceeded the maximum or acted unreasonably, the first step is a written request for explanation and an itemised account of all commission deducted. The Public Trustee is not compelled by the regulations to provide this, but good administrative practice suggests it should. If the response is unsatisfactory, the beneficiary may apply to the Supreme Court for an order that the commission be reduced or refunded. The grounds would be either that the charge exceeded the prescribed maximum (breach of statutory duty) or that the discretion was exercised unreasonably (judicial review). The burden of proof is on the challenger. Given the cost of litigation, mediation or negotiation is often preferable. The regulations do not provide an alternative dispute resolution mechanism, but the Public Trustee may agree to mediation.

For court officers and judges. When making orders that require money to be paid to the Public Trustee under clause 2 of Schedule 2, consider directing immediate payment of a portion of the funds to attract the lower 1% commission cap on that portion, thereby reducing the overall commission burden on the beneficiary.

General tip. The regulations are permissive. The Public Trustee sets its own rates within the caps. Those rates are not free; they are subject to the general law of trusts and administrative law. Anyone affected should assume the Public Trustee will charge at or near the maximum unless there is a specific reason to discount. Proactive inquiry and, where necessary, negotiation are the most effective compliance tools for those on the paying side.