Part 4Administration of deceased estates

Part 4—Administration of deceased estates 74—Interpretation In this Part— deliver includes pay; testamentary jurisdiction—see section 3. 75—Vesting of intestate estate on person's death If a person dies wholly or partially intestate, the person's estate, in so far as it is not affected by a will, vests in the Public Trustee from the time of the person's death until administration is granted in respect of the estate. 76—Vesting of land on person's death (1) On the death of a person, any land forming part of the estate of the person will, subject to any mortgage, trust or equity affecting the land— (a) in the case of land disposed of by will— (i) if there is only 1 executor under the will—vest in that executor; or (ii) if there is more than 1 executor under the will—vest jointly in the executors; (b) in the case of undevised land—vest in the Public Trustee in accordance with section 75. (2) Land vested under subsection (1)(a), and any proceeds of the sale of the land, are assets in the hands of the executor and are disposable and distributable for the payment of debts and liabilities of the deceased as if the land had been a chattel real forming part of the deceased person's estate. (3) This section does not affect the order in which, as between persons claiming under the deceased, the assets of the deceased person's estate are liable for the payment of debts or legacies, nor is this section to be taken to impose any charge on land for the payment of legacies. 77—Vesting of intestate estate on grant of administration (1) On the grant of administration of a deceased person's estate, the estate that vested in the Public Trustee at the time of the person's death under section 75— (a) if the grant is made to 1 person—vests in that person; (b) if the grant is made to more than 1 person—vests jointly in those persons. (2) Any undevised land vested under subsection (1), and any proceeds of the sale of the land, are assets in the hands of the administrator and are disposable and distributable for the payment of debts and liabilities of the deceased as if the land had been a chattel real forming part of the deceased person's estate. (3) This section does not affect the order in which, as between persons claiming under the deceased, the assets of the deceased person's estate are liable for the payment of debts or legacies, nor is this section to be taken to impose any charge on land for the payment of legacies. 78—Administrator to hold intestate property on trust (1) The administrator of an intestate estate holds the estate on trust for the persons entitled to share in the estate in accordance with Part 5. (2) Subject to Part 5, the administrator may sell, or convert into money, the whole or any part of an intestate estate. 79—Court's powers in relation to management of undevised land (1) The Court may, from time to time, on application, give directions relating to the management of undevised land. (2) An application for directions may be made by an executor or administrator or a person beneficially interested in the undevised land. (3) The Court may direct the course of proceedings to be taken with respect to— (a) the time and mode of sale of the land; and (b) the letting and management of the land until its sale; and (c) the application for maintenance or advancement or otherwise of shares or interests of minors; and (d) the expediency and mode of effecting a partition of the land (if applied for), and generally with respect to the administration of the property for the greatest advantage of all persons interested. (4) The Court must, before giving directions under this section— (a) ensure that notice of the application has been given as prescribed by the rules; and (b) make such inquiries as the Court thinks fit. 80—Court may order partition of undevised land (1) If, after such inquiries as the Court thinks fit, the Court is satisfied that a partition of undevised land would be advantageous to the parties interested, the Court may appoint 1 or more arbitrators to effect a partition of the land and to exercise, under the direction and control of the Court, powers similar to those of commissioners acting under a decree for partition. (2) On the report and final award of the arbitrators setting out the particulars of the land allotted to each party interested, the executor or administrator in which the land is vested must convey or transfer the land in accordance with the report and final award. 81—General duties of executors and administrators (1) An executor or administrator has the following general duties: (a) to collect the deceased person's estate and administer it according to law; (b) to deliver up the grant of probate or administration to the Court when required to do so by the Court; (c) to distribute the deceased person's estate, subject to administration by the executor or administrator, as soon as practicable. (2) Subsection (1) does not limit any other duty to which an executor or administrator may be subject under this Act or any other Act or law, or in equity. 82—Power of executor or administrator to sell real property for payment of debts (1) An executor or administrator may sell real property forming part of a deceased estate for the payment of any debts of the estate. (2) A person who purchases real property forming part of a deceased estate from the executor or administrator is not required to inquire as to the existence of debts, the necessity for sale or the application of the purchase money. 83—Payment of debts and liabilities in the case of solvent estates (1) Subject to this Act, if the estate of a deceased person is sufficient to pay all its debts and liabilities, the estate will be applicable towards the discharge of debts and liabilities payable out of the estate in the following order: (a) from personal or real property specifically appropriated, devised, bequeathed, directed to be sold (either by a specific or general description) or subject to a charge for the payment of a debt or liability of the estate; (b) from personal and real property comprising the residuary estate and property in relation to which a disposition in the deceased's will operates as the exercise of a general power of appointment; (c) from personal and real property specifically devised or bequeathed, including property specifically appointed under a general power of appointment and any legacy charged on the property devised, bequeathed or appointed. (2) For the purposes of subsection (1)— (a) property must be applied to the discharge of the estate's debts and liabilities rateably according to value; and (b) if specific property is applied to the payment of a debt or liability of the estate and a legacy is charged on that property— (i) the legacy and the property must be applied rateably according to the value of the property; and (ii) the value of that property must be reduced by the amount of the legacy charged on it. (3) This section does not apply if a contrary intention appears in the deceased person's will. 84—Mortgages and charges on land not be paid out of deceased's residuary or personal estate (1) If, on a person's death— (a) the person is seized of, or is entitled to, real property charged with a property debt; and (b) the person has not (whether by their will, a deed or any other document) signified a contrary or other intention, a person who becomes beneficially entitled to that property through the deceased person is not entitled to have the property debt satisfied out of any other property (whether real or personal) forming part of the estate of the deceased person, and the property charged with the property debt is, as between different persons claiming through or under the deceased person, primarily liable for the payment of the property debt with which it is charged, and each part of the property, according to its value, is to bear a proportionate part of the property debt. (2) For the purposes of subsection (1), a contrary or other intention must be signified expressly and by distinct reference to the money charged, and is not to be taken to be signified by a direction for payment of debts out of, or a charge of debts on— (a) personal property; or (b) residuary real and personal property; or (c) residuary real property, forming part of the estate of the deceased person. (3) Nothing in this section affects the right of a person entitled to real property charged with a property debt to obtain payment for, or satisfaction of, the property debt out of personal property forming part of the deceased person's estate or otherwise. property debt, in relation to land, means a mortgage or any charge (whether legal or equitable), and includes a lien for unpaid purchase money. 85—Specialty and simple contract debts of deceased persons to stand in equal degree (1) Despite any Act or law to the contrary, no debt or liability of a deceased person is entitled to priority or preference by reason only of the fact that the debt or liability is secured or arises under a bond, deed or other instrument under seal or is otherwise made or constituted a specialty debt rather than a debt under a simple contract, and all the creditors of the person are to be treated as standing in equal degree and are to be paid accordingly out of the assets (whether legal or equitable) of the deceased person. (2) This section does not affect any lien, charge or other security that a creditor holds or is entitled to for the payment of debt. 86—Filing of declaration that estate is insufficient to pay debts and liabilities (1) An executor, administrator or creditor of a deceased person may file with the Registrar a declaration that the executor, administrator or creditor (as the case may be) believes that the estate of the deceased person is insufficient for the payment of its debts and liabilities. (2) If a declaration is filed by a creditor under subsection (1) and probate or administration has been granted, the creditor must give the executor or administrator a copy of the declaration with a memorandum of the date on which it was filed. (3) If probate or administration is granted after a creditor has filed a declaration under subsection (1), the Registrar must, on issuing the grant of probate or administration, give the executor or administrator a copy of the declaration with a memorandum of the date on which it was filed. (4) After a declaration under subsection (1) has been filed by an executor or administrator or a copy of a declaration filed by a creditor has been given to the executor or administrator, the executor or administrator must administer the deceased estate, in so far as it concerns the payment of liabilities, in the same manner (as far as practicable) as it would have been administered for the benefit of creditors under a decree of the Court. (5) The Court may, on the application (with or without notice) of the executor or administrator, order that any action against the executor of administrator must not proceed beyond judgment without the permission of the Court. (6) In this section— creditor includes a person entitled to make a claim against the estate under section 87. 87—Rules in insolvency administration to prevail in certain cases (a) the Public Trustee is the administrator of a deceased estate pursuant to an order under section 9 of the Public Trustee Act 1995 and the estate has been found to be insufficient to pay the debts and liabilities of the deceased person; or (b) a declaration that the estate of a deceased person is insufficient for the payments of the debts and liabilities of the deceased person has been filed under section 86 and probate or administration has been granted in respect of the estate; or (c) the estate of a deceased person is being administered by the Court and the estate has been found to be insufficient to pay the debts and liabilities of the deceased person, the same rules are to apply as to the respective rights of secured and unsecured creditors, and as to debts and liabilities provable, and as to the valuation of annuities and future or contingent liabilities respectively, as are in force for the time being under the law of bankruptcy with respect to the estates of persons adjudged bankrupt. (2) All persons who would, in a case referred to in subsection (1), be entitled to prove for and receive dividends out of the estate of the deceased person may come in under the administration of the estate and make such claims against the estate as they may respectively be entitled to by virtue of this Act. 88—How estate is to be administered In an administration of a deceased estate by the Court, by the Public Trustee under section 9 of the Public Trustee Act 1995 or by an executor or administrator under section 86, the following provisions apply: (a) the executor or administrator has no right of retainer; (b) a creditor who has at any time obtained judgment against the executor or administrator does not, by reason of the judgment, have any priority over other creditors; (c) subject to this Act, legal assets are to be administered in the same way as equitable assets. 89—Court may order sale of property belonging to minor (1) The Court may, on application, order the sale of any real or personal property or part of it (whether or not specifically devised or bequeathed) that belongs to a minor or to which a minor is beneficially entitled if the Court considers it for the benefit of the minor that the sale should be effected. (2) An application under this section may be made by— (a) an executor, administrator or trustee in whom the property is vested; or (b) a guardian of the estate; or (c) the next friend of the minor. 90—Court may give permission to postpone realisation or carry on business (1) The Court may, if it considers it beneficial to do so, give permission to an executor, administrator or trustee of a deceased person, or to the Public Trustee— (a) to postpone, for such period as the Court thinks expedient, the realisation of the estate or trust property; (b) to carry on, for such period as the Court from time to time thinks expedient, the business or affairs of the testator or intestate, and for that purpose to use the estate of the testator or intestate, or such portion of it as the Court directs. (2) An executor, administrator or trustee acting in accordance with the Court's permission under this section is not answerable for any consequent loss, except in the case of breach of trust, negligence or wilful default. (3) An order under this section may be made either with or without notice, or on such notice as the Court in any case thinks proper, and may be varied from time to time as the Court thinks fit. 91—Administrator to pay over money and deliver property to Public Trustee (1) If an administrator is possessed of or entitled to any real or personal property in this State belonging to a person who lacks legal capacity, the administrator must deliver, convey or transfer that property to the Public Trustee immediately after the expiry of 1 year from the date of the death of the testator or intestate, or within 6 months after such sooner time as the property or portion of it is available for that purpose has been sold, realised, collected or got in. (2) However, the Court may, on application by an administrator or proposed administrator, if satisfied on the basis of evidence by affidavit that it would be beneficial or expedient to do so, order that— (a) any administrator or proposed administrator is not bound to comply with subsection (1); or (b) any administrator or proposed administrator is not bound to comply with subsection (1) until such time as is specified in the order. (3) The time specified in an order under subsection (2) may be extended by the Court by subsequent order made on application by the administrator or proposed administrator. (4) An order under this section may be obtained without notice to any interested party. (5) An order under subsection (2)(a) may be granted despite the fact that an order under subsection (2)(b) has already been made. (6) If the Court so directs, an order under this section has the effect of discharging the administrator from further responsibility in respect of the property to which the order relates. (7) The Public Trustee or any person interested may apply to the Court to require the administrator or proposed administrator to appear before the Court to show cause why an order made under this section should not be set aside and the Court may set aside or vary the order, or make such other order, as seems best to the Court. (8) The Public Trustee must, after receiving property under this section, administer the property according to law and in accordance with any will affecting the property. (9) Subject to the provisions of any will or instrument of trust, the Public Trustee may, if satisfied that it would be advantageous to the beneficiaries, authorise the sale of any trust property not exceeding $4 000 in value to the administrator, or to the administrator jointly with any other person, despite the fact that the property has not been offered for sale by public auction or otherwise. (10) Subject to the provisions of any will or instrument of trust, the Public Trustee may, in the Public Trustee's discretion, realise or postpone the realisation of any property received by the Public Trustee under this section. (11) The delivery, conveyance or transfer of property to the Public Trustee under this section discharges the administrator from any further responsibility in relation to that property. (12) This section does not apply to— (a) an administrator acting under an interstate or foreign grant of probate or administration registered or sealed under section 57; or (b) an administrator that is a limited company incorporated, or taken to be incorporated, under the Corporations Act 2001 of the Commonwealth and is acting as administrator pursuant to powers granted to the company by any Act. 92—Statement and account to be provided to Public Trustee (1) An administrator must— (a) within 6 months after administration has been granted; or (b) within such longer period as the Public Trustee may, on the application of the administrator, allow, provide the Public Trustee with a statement and account, verified by the administrator by statutory declaration, of all of the estate of the deceased and of the administration of it by the administrator. (2) This section does not apply if the administrator is a limited company incorporated, or taken to be incorporated, under the Corporations Act 2001 of the Commonwealth and is acting as administrator pursuant to powers granted to the company by any Act. 93—Court may order provision of statement and account The Court may at any time— (a) on the application of the Public Trustee or a person interested in the estate of a deceased person; or (b) on the Court's own initiative, order an administrator of a deceased estate to provide the Public Trustee with a statement and account, verified by the administrator by statutory declaration, of all of the estate of the deceased and of the administration of it by the administrator. 94—Proceedings to compel provision of statements and account (1) If an administrator— (a) fails to comply with section 92(1); or (b) fails to comply with an order made under section 93 within 1 month after the time allowed by the Court, the Public Trustee or any person interested in the estate of the deceased person may apply to the Court to require the administrator to appear before the Court to show cause why the administrator should not provide the statement and account to the Public Trustee immediately. (2) If an administrator who has required by the Court to appear before the Court— (a) fails to appear as required by the Court; or (b) fails to show cause why the administrator should not provide a statement and account to the Public Trustee immediately, the Court may from time to time order the administrator to provide the statement and account to the Public Trustee immediately or within such further time as the Judge thinks fit to allow. 95—Public Trustee, executors, administrators and trustees may obtain judicial advice or direction (1) The Public Trustee must, when in difficulty or doubt, apply to the Court for advice or direction as to any matter related to the administration of the estate of a deceased person or the construction of a will, deed or other document. (2) An executor, administrator or trustee may, when in difficulty or doubt, apply to the Court for advice or direction as to any matter related to the administration of the estate of a deceased person or the construction of a will, deed or other document. (3) An application under (1) or (2) may be made with or without— (a) notice of the application being given to any of the parties interested; or (b) any of the parties interested being served with the proceedings. (4) A person interested in an estate who is dissatisfied with the conduct of the Public Trustee in any matter related to the administration of the estate of a deceased person or the construction of a will, deed or other document, may apply to the Court for a review of the Public Trustee's conduct. (5) The Court may, on hearing an application under subsection (3), make any declaratory or other order as the Court thinks fit as to the administration of the estate of a deceased person or the construction of the will, deed or other document, that is the subject of the application and any order as to the costs of the application as the Court thinks fit. (6) An order made in the absence of an interested party has the same effect and the same force or validity, with the respect to the protection of the Public Trustee or other trustee or executor or administrator, as if the order had been a decree or order made in an action in which all the parties concerned were represented. (7) If an application under this section is dealt with by the Registrar or a Master of the Court, the Registrar or Master may refer any question of law arising on the application for the opinion of the Court or may direct an issue to be tried by, or an action to be commenced in, the Court. 96—Commission may be allowed to executors, administrators and trustees (1) The Court may allow an executor, administrator or trustee, whether of the estate of a deceased person or otherwise, such commission or other remuneration out of the estate or trust property, and either periodically or otherwise, as the Court considers just and reasonable. (2) However, no commission or other remuneration is allowable to an administrator who fails to— (a) provide the statement and account required by section 92 in accordance with that section or within such time as the Court may allow; or (b) dispose of an estate with which the administrator is chargeable according to the due course of administration. (3) An administrator who fails to dispose of an estate with which the administrator is chargeable will be charged with interest at the prescribed rate for such sums of money as have been in the hands of the administrator from time to time, whether or not the administrator has earned interest on the money. 97—Court may require undertakings from executor or administrator The Court may require an executor or administrator to give undertakings to the Court as to— (a) the manner in which the administration of a deceased estate is to be conducted or accounted for; or (b) any other matter that, in the opinion of the Court, may assist in the proper administration of a deceased estate. 98—Remedy if executor or administrator fails to perform duties etc (1) If an executor or administrator— (a) fails to perform any duties required of the executor or administrator by law in the administration of a deceased estate; or (b) fails to comply with any undertaking given to the Court as to the administration of a deceased estate; or (c) fails to comply with any direction of the Court or the Registrar as to the administration of a deceased estate, the Court may, on the application of a person aggrieved by the failure, make any order it considers appropriate. (2) Without limiting subsection (1), the Court may make any or all of the following orders: (a) an order requiring the executor or administrator to pay into the estate of the deceased person an amount equivalent to any financial benefit the executor or administrator has obtained (whether directly or indirectly) as a result of their failure; (b) an order requiring the executor or administrator to compensate any person who has suffered loss or damage as a result of their failure; (c) any other order that the Court considers appropriate to compensate persons who have suffered loss or damage as a result of the failure of the executor or administrator. (3) An application for an order under this section must be made within 3 years from the time that the person aggrieved by the failure of the executor or administrator becomes aware of the failure. 99—Payment of interest on legacies (1) If a legacy of a specified amount under a will is not paid in full to the beneficiary of the legacy on or before the relevant date— (a) interest at the prescribed rate accrues from the relevant date on so much of the legacy as remains unpaid on the relevant date; and (b) the executor must pay the beneficiary of the legacy interest on the unpaid amount at the prescribed rate until the legacy has been paid in full. (2) If a legacy payable to a spouse from an intestate estate in accordance with Part 5 is not paid in full on or before the first anniversary of the deceased person's death— (a) interest at the prescribed rate accrues from that anniversary on so much of the legacy as remains unpaid on that anniversary; and (b) the administrator of the estate must pay to the beneficiary of the legacy interest on the unpaid amount at the prescribed rate until the legacy has been paid in full. (3) Payment of interest on a legacy under subsection (1) is subject to a contrary intention in the will about any of the following: (a) whether interest is payable on the legacy; (b) the time from which interest is payable on the legacy; (c) the rate of interest that is payable on the legacy. relevant date means— (a) the date fixed by the will as the date by which the legacy must be paid; or (b) if no such date is fixed by the will—the date of the first anniversary of the testator's death. 100—Payment of money and personal property without grant of probate or administration (1) A person who holds money or personal property for a deceased person of not more than $15 000 in value may, without requiring the production of a grant of probate or administration, pay the money or transfer the personal property to any of the following persons having legal capacity: (a) a surviving spouse or domestic partner of the deceased; (b) a child of the deceased. (2) A payment of money or transfer of personal property under subsection (1) made in good faith is a complete discharge to the person holding the money or personal property of all liability for the money or personal property. (3) This section does not affect the right of a person who has a claim to, or against, the deceased estate to enforce a remedy for the person's claim against a person to whom a payment or transfer has been made under subsection (1).