Trustee Companies Regulations 2026

The central concept is the frozen Act. The regulations operate under the Trustee Companies Act 1984 as in force on 10 May 2010, which continues to apply to State Trustees by virtue of section 20A(1) of the State Trustees (State Owned Company) Act 1994. This means that amendments to the Trustee Companies Act made after 10 May 2010 do not affect State Trustees. The regulations themselves are made under section 55 of that frozen version. Consequently, any practitioner dealing with State Trustees must consult the pre-2010 Act, not the current consolidated Trustee Companies Act.

Election to administer estate (reg 6, Forms 1 and 2). This is a summary procedure under section 11A of the Act allowing State Trustees to administer small estates (gross value not exceeding $50,000) without a formal grant of probate or letters of administration. The election is filed in the Supreme Court of Victoria. For an intestacy, the form requires particulars of the deceased, a search showing no caveat or prior grant, published notice in a daily newspaper, and an inventory. For a testate estate, the will must be annexed. The value cap of $50,000 is notable; estates above that threshold require the normal grant process under the Act or the Administration and Probate Act 1958.

Perpetual trust valuation (reg 7). For the purpose of section 21A(2)(a), the value of a perpetual trust’s assets is calculated without deducting liabilities. This is a gross valuation method. It increases the administration fee base compared to a net asset approach, because liabilities do not reduce the figure from which the fee is drawn. This matters because the fee is a percentage of value; a higher base means higher fees, all else equal.

Commission exemptions (regs 8 and 9). Section 23(1) of the Act prohibits a trustee company from receiving a commission for performing functions in relation to estate property, unless an exemption applies. These regulations create two exemptions. First, for licensed estate agents, livestock agents, and participants in a declared financial market (as defined in section 9D of the Corporations Act), the prohibition is lifted if two conditions are met: the commission does not exceed the generally applicable rate for that kind of function, and each beneficiary with an interest in the property (with exceptions for incapacity, unascertainability, or inability to be found) gives written consent. Second, for an ADI, the prohibition is lifted if the commission does not exceed the generally applicable rate; no consent is required. The term “generally applicable” is not defined in the regulations and may require reference to industry standards.

Related party deposits and loans (reg 10). Section 32 of the Act restricts trustee companies from depositing estate money with or lending estate money to a related corporation. The regulations prescribe two circumstances where such transactions are permitted: the trust instrument or other authorising instrument must expressly or generally authorise the deposit or loan, or the transaction must be permissible under the Trustee Act 1958 or a corresponding interstate Act; and State Trustees must obtain independent advice, at no cost to the estate, confirming that the terms are no less favourable than those available from similar corporations and that the transaction will not disadvantage the estate.

Prescribed periods (reg 11). Section 36(2) of the Act requires certain matters to be done within prescribed periods. The regulations define those periods as each half of the calendar year: 1 January to 30 June, and 1 July to 31 December.

The regulations directly affect State Trustees, the state-owned trustee company. They do not apply to any other trustee company operating in Victoria. Private trustee companies such as Perpetual, Equity Trustees, or Australian Executor Trustees are governed by the post-2010 version of the Trustee Companies Act and its associated regulations (the Trustee Companies Regulations 2016, now revoked for State Trustees purposes). This creates a bifurcated regulatory landscape: one set of rules for State Trustees and another for everyone else.

The regulations affect beneficiaries of estates administered by State Trustees. A beneficiary with an interest in property that is the subject of a commission paid to a licensed estate agent, livestock agent, or financial market participant must give written consent before the exemption in regulation 8 can apply. If a beneficiary does not consent, the exemption is unavailable, and the commission prohibition in section 23(1) remains in force. Beneficiaries who are legally incapable, cannot be found, or cannot be ascertained are excepted, but State Trustees bears the burden of establishing those exceptions.

The regulations affect estate agents and livestock agents who perform functions for State Trustees. They can receive commissions without breaching the Act, provided the rate is market standard and beneficiary consent is obtained. Similarly, participants in declared financial markets (such as stockbrokers or ASX participants) benefit from the same exemption. ADIs (banks, credit unions, building societies) have a broader exemption: no consent is needed, only a market rate limit.

The regulations affect related corporations of State Trustees (such as other entities within the state-owned corporate group). Deposits and loans from estates to those corporations are permitted only if the dual conditions of authorisation and independent advice are met. The independent adviser (likely a lawyer, accountant, or investment bank) must provide advice without charging the estate, which may reduce the pool of willing advisers.

The Supreme Court of Victoria receives the election forms and will process them under the probate jurisdiction. The Registrar of Probates may need to verify that the estate value does not exceed $50,000 and that the procedural steps (search, notice, inventory) have been taken.

Finally, the regulations affect legal practitioners and compliance officers who advise State Trustees. They must be aware that the governing Act is frozen at 10 May 2010, that Forms 1 and 2 are mandatory for elections, and that the conditions for commission exemptions and related party transactions are carefully prescribed.

State Trustees has several duties under the regulations. It must use the prescribed forms when making an election under section 11A. The forms require specific particulars: the estimated gross value of the estate (not exceeding $50,000), evidence of a search of the Registrar’s Office showing no caveat or prior grant, publication of a notice of intention in a daily newspaper circulating in Victoria, and an inventory of assets. For a testate estate, the will must be filed. Failure to comply with the form requirements may render the election invalid, and State Trustees may not be able to administer the estate without a formal grant.

In relation to commissions, State Trustees has a duty to ensure that any commission paid to a licensed estate agent, livestock agent, or financial market participant does not exceed a rate generally applicable to functions of that kind. It also must obtain the written consent of each beneficiary with an interest in the property. This is a positive duty; the exemption does not apply automatically. State Trustees must identify all such beneficiaries and actively seek their consent. If a beneficiary is legally incapable, cannot be found, or cannot be ascertained, State Trustees must be able to evidence that fact. The regulation does not specify a method for documenting these exceptions, but contemporaneous records would be prudent.

For ADI commissions, the duty is only to ensure the commission rate is generally applicable; no consent is required. However, State Trustees should still document the basis for concluding that the rate is market standard.

In relation to deposits or loans to related corporations, State Trustees must: (a) confirm that the transaction is authorised by the trust instrument or other instrument, or is permissible under the Trustee Act 1958 or corresponding interstate Act; and (b) obtain independent advice, at no cost to the estate, that the terms are no less favourable than those offered by similar corporations and that the transaction does not disadvantage the estate. The independent advice must be from a source other than State Trustees itself; the regulation does not prescribe qualifications for the adviser, but the adviser should be competent to assess financial terms and conflicts of interest.

Beneficiaries have a right to withhold consent to commission payments. If a beneficiary refuses consent, the exemption is lost, and State Trustees must either not use that agent or financial market participant, or forgo the commission. Beneficiaries also have a right to see the independent advice obtained for related party transactions, though the regulation does not expressly require disclosure. The duty of a trustee to act in the best interests of beneficiaries would likely require transparency.

Related corporations have no duties under the regulations but have an interest in ensuring that deposits or loans from State Trustees are structured to meet the regulatory conditions, so that State Trustees can lawfully make them.

The regulations themselves do not create any offences or penalties. They operate by granting exemptions from prohibitions in the Act. The primary enforcement mechanism is that if the conditions for an exemption are not met, the underlying prohibition in the Act applies, and a breach of the Act may attract penalties under that Act. The regulations do not state what those penalties are; one would need to consult the frozen version of the Trustee Companies Act 1984 as at 10 May 2010. Typically, a trustee company that receives a commission without an applicable exemption commits an offence, and the commission may be recoverable by the estate. Similarly, making a deposit or loan to a related corporation outside the prescribed circumstances would contravene section 32(2) of the Act, potentially leading to civil liability for breach of fiduciary duty or statutory penalty.

Enforcement lies with the Supreme Court of Victoria, which has supervisory jurisdiction over trustees. Beneficiaries or the Attorney-General could apply to the Court for an order requiring State Trustees to account for commissions received in breach of the Act or to unwind an unauthorised related party transaction. The Court may also remove State Trustees as trustee or administrator, though that is a drastic remedy.

The risk for State Trustees is practical: non-compliance with the election forms (e.g., using an incorrect form or failing to publish notice) could result in the election being set aside, requiring a formal grant and additional cost. Non-compliance with the commission exemption conditions could expose State Trustees to claims for repayment of commissions or for loss suffered by the estate. The independent advice requirement for related party transactions is a significant compliance cost. If the advice is not obtained, or if it is obtained from a conflicted source, or if the estate bears the cost, the transaction may be voidable.

There is no specific enforcement body mentioned in the regulations. The Australian Securities and Investments Commission does not regulate State Trustees because it is a state-owned entity; oversight is primarily through the Victorian Government and the Courts.

The regulations sit within a web of statutes. The primary Act is the Trustee Companies Act 1984 as in force on 10 May 2010, which is frozen for State Trustees by section 20A(1) of the State Trustees (State Owned Company) Act 1994. That latter Act is not reproduced here, but it is the gateway that makes these regulations applicable to State Trustees alone. The regulations are made under section 55 of the frozen Act, which grants the Governor in Council power to make regulations.

The regulations incorporate definitions from other Victorian and Commonwealth legislation. “Declared financial market” takes its meaning from section 9D of the Corporations Act 2001 (Cth) . This aligns the regulations with the Commonwealth definition of financial markets such as ASX, Chi-X, or the National Stock Exchange. “Licensed estate agent” is defined by reference to the Estate Agents Act 1980 (Vic) . “Livestock agent” is defined functionally as a person carrying on the business of stock or station agent, without reference to a specific licensing statute; this may create some interpretive ambiguity. “ADI” is not defined in the regulations, but the Act likely uses the Banking Act definition; the regulations do not repeat it.

Regulation 10 interacts with the Trustee Act 1958 (Vic) and corresponding interstate Acts. A deposit or loan to a related corporation is permitted if it is of a kind that could be made under the Trustee Act 1958. That Act contains investment powers and restrictions for trustees generally; State Trustees, as a professional trustee, may have broader powers, but the regulation specifically ties back to the Trustee Act. Practitioners must check whether the proposed deposit or loan is authorised under that Act (e.g., as a mortgage, a deposit with an ADI, or a loan on certain security) and whether any conditions in the Trustee Act are also satisfied.

The Administration and Probate Act 1958 (Vic) governs grants of representation generally. The election procedure under section 11A of the frozen Act is an alternative to a formal grant for small estates. If the estate exceeds $50,000 gross, the election cannot be used, and the normal probate or administration process applies. The forms themselves are filed in the Supreme Court’s probate jurisdiction, so the procedural rules of the Court (including the Supreme Court (General Civil Procedure) Rules) apply to the filing service and any subsequent objections.

The Subordinate Legislation Act 1994 (Vic) governs the making, tabling, and sunsetting of statutory rules. The endnote confirms that these regulations will sunset ten years after making (14 March 2036). That sunset date is a compliance risk: if the regulations are not remade before then, the exemptions and prescribed forms will lapse, and State Trustees will have no regulatory basis for using the election procedure or the commission exemptions.

The regulations do not interact with the Trustee Companies Legislation Amendment Act 2010 because that Act does not apply to State Trustees (by the operation of the State Trustees Act). However, other trustee companies are governed by the post-2010 Act and its regulations (the 2016 Regulations, now revoked for State Trustees, but presumably still in force for others). This creates a dual regime: one set of forms and exemptions for State Trustees, another for private trustee companies.

No interaction with the Australian Consumer Law or ASIC Act is evident from the source, but general fiduciary duties under the common law and the Trustee Act continue to apply.

These are the first version (Version No. 001) of the Trustee Companies Regulations 2026. They were made on 11 March 2026 and commenced on 14 March 2026. The Table of Amendments in the source states: “There are no amendments made to the Trustee Companies Regulations 2026 by statutory rules, subordinate instruments and Acts.” This means that as at the publication date (apparently shortly after commencement), no amending instruments had been made. The regulations revoked the earlier Trustee Companies Regulations 2016 (S.R. No. 13/2016). That revocation is effective from 14 March 2026. No transitional provisions are included in these regulations, so any actions commenced under the 2016 regulations may need to be completed under the old forms unless the Act itself provides otherwise. The 2016 regulations applied to all trustee companies, not just State Trustees, because at that time the Act had not been bifurcated. But since 2010, the Act has been frozen for State Trustees, so the 2016 regulations would have technically applied to State Trustees only if they were consistent with the frozen Act. The 2026 regulations now specifically and exclusively address State Trustees. The change from 2016 to 2026 likely updated the forms, clarified the commission exemptions, and perhaps adjusted the perpetual trust valuation method (the 2016 regulations may have had different wording). Without the 2016 text, we cannot compare, but the source shows no amendments to the 2026 regulations.

The regulations were made under section 55 of the frozen Act, and the note confirms they were made by the Governor in Council. They were published as Statutory Rule No. 16/2026. The sunset clause in the Subordinate Legislation Act means they expire on 14 March 2036 unless earlier revoked or extended. Practitioners should monitor for replacement regulations in late 2035 or early 2036.

The source text contains no references to litigation history. These regulations are brand new (commenced March 2026), so there are no reported cases interpreting them. The underlying provisions of the frozen Trustee Companies Act 1984 (such as sections 11A, 21A, 23, 32, and 36) may have been the subject of litigation before 2010, but the source does not mention any such cases. The regulations themselves have not been challenged or judicially considered. Any future litigation would likely involve disputes over the validity of an election (e.g., whether the estate value exceeded $50,000, or whether the form was correctly completed), the application of the commission exemptions (e.g., whether a commission is “generally applicable”, whether consent was properly obtained from all beneficiaries), or the use of related party transactions (e.g., whether the independent advice was truly independent and at no cost to the estate). Given that these regulations apply only to State Trustees, which is a state-owned entity, litigation might be brought by beneficiaries or by the Victorian Ombudsman rather than by ASIC. The Supreme Court of Victoria has jurisdiction over trusts and probate matters, and any challenge to an election would be brought in the probate jurisdiction. The lack of litigation history means there are no precedential interpretations of the regulation language, so reliance on the plain meaning is paramount.

Several traps await the unwary.

It only applies to State Trustees. The most critical gotcha. These regulations are not a general code for all trustee companies. A practitioner advising a private trustee company such as Equity Trustees or Perpetual must not rely on these forms or exemptions; that company is subject to the amended Trustee Companies Act and its own regulations (likely the 2016 Regulations as they apply to that entity, or newer ones). Even within State Trustees, the Act is frozen at 10 May 2010. Later amendments to the Trustee Companies Act, such as increased penalties or new powers, do not apply.

The $50,000 cap is strict. Forms 1 and 2 require the gross value of the estate to be estimated at not exceeding $50,000. If the value turns out to be higher, the election may be invalid. The form asks for an estimate “at the time of this election”. If assets are later discovered that push the value over $50,000, the election might be set aside, and State Trustees would need a formal grant. The cap is gross value, not net equity, and no deduction for liabilities is allowed.

Perpetual trust valuation without deduction of liabilities. Regulation 7 prescribes a gross asset value for the fee calculation. This is the opposite of net asset value. If the trust has significant liabilities (such as a mortgage on real property), the fee is calculated on the gross value, which could be much larger than the equity. This inflates the administration fee. The regulation applies “for the purposes of section 21A(2)(a)”; that section likely governs how the fee is drawn. The fee must be reasonable, but the prescribed method sets a floor or a base.

Written consent from each beneficiary. Regulation 8(1)(b) requires the written consent of each beneficiary who has an interest in the property. This is an onerous condition. In a complex estate with multiple beneficiaries, some may be minors (legally incapable), missing, or unborn. The exceptions only cover those who are legally incapable, cannot be found, or cannot be ascertained. Minors are legally incapable, but children who are capable but under 18 may be considered incapable. The exception for “unable to find” requires diligent search; the exception for “cannot be ascertained” applies if the beneficiary’s identity is unknown. If even one beneficiary who can be found and is capable does not consent, the exemption fails. There is no mechanism for the Court to override a beneficiary’s refusal. This gives a single beneficiary a veto over the use of an estate agent or broker.

No consent required for ADI commissions, but “generally applicable rate” is undefined. Regulation 9 removes the prohibition for ADI commissions without requiring consent. However, the condition that the commission “does not exceed an amount or a rate generally applicable” could be disputed. What is the generally applicable rate for an ADI’s services? Is it the bank’s standard fee schedule? The market average? This ambiguity creates legal risk.

Independent advice at no cost to the estate. Regulation 10(b) requires the trustee to obtain independent advice “otherwise than at the expense of the estate”. This means State Trustees must pay for the advice itself. The independent adviser must not be a related entity or an employee. If the estate is small, the cost of such advice could exceed the benefit of the transaction. This may deter State Trustees from using related corporation deposits or loans for small estates.

Deposit or loan must also be authorised under the Trustee Act 1958. Regulation 10(a)(ii) allows the transaction if it is a deposit or loan which may be made under the Trustee Act 1958. That Act has certain investment restrictions; for example, unsecured loans are generally not permitted. So even if the trust instrument authorises the transaction, it must also fit within the Trustee Act’s permitted investments. If the Trustee Act does not permit such a loan, the transaction is not saved by the trust instrument alone.

Half-yearly periods under section 36(2). Regulation 11 sets the prescribed periods as 1 Jan-30 Jun and 1 Jul-31 Dec. If State Trustees is required to file reports or take other steps under section 36(2) within those periods, missing the deadline could result in non-compliance. The exact obligation under section 36(2) is not stated in the regulations, but it likely relates to filing accounts or statements with the Court or the Registrar. Practitioners should check the frozen Act to understand what must be done within those periods.

No amendment history. The regulations are version 001 with no amendments. That means they are pristine, but also that any drafting errors or ambiguities have not been corrected. The forms contain placeholders like [name of deceased] and [date]; these must be completed accurately. The form refers to “the State of Victoria” and requires the deceased’s last residential address and occupation. If any field is omitted, the form may be defective.

Sunset. The regulations expire on 14 March 2036. If not remade, the exemptions and prescribed forms cease. State Trustees would then have no valid election forms and no exemptions from the commission prohibition. This is a long lead time, but compliance systems should have a diary entry for 2035.

Compliance for State Trustees can be broken down by regulation.

Election to administer estate (reg 6, Schedule 1). Use Form 1 for intestate estates and Form 2 for testate estates. Before filing, confirm that the gross value of the estate does not exceed $50,000. Conduct a search of the Registrar’s Office to ensure no caveat is lodged and no grant of representation has been made. Publish a notice of intention in a daily newspaper circulating generally throughout Victoria. Prepare an inventory of the estate. For a testate estate, annex the original will (or a certified copy). File the completed form in the Supreme Court of Victoria, probate jurisdiction. Retain a copy with evidence of the search, publication, and inventory. If the estate value is uncertain, consider whether it is prudent to proceed by formal grant instead.

Perpetual trust administration fee (reg 7). When calculating the value of a perpetual trust for the purpose of drawing an administration fee under section 21A(2)(a), use the gross value of the trust’s assets at the time the fee is drawn. Do not deduct liabilities such as mortgages, loans, or accrued expenses. Document the asset values and the date of valuation. If the trust has liabilities, the fee will be higher than if net value were used; ensure that this is disclosed to beneficiaries or the Court if required.

Commission exemptions (regs 8 and 9). Before any commission is paid to a licensed estate agent, livestock agent, participant in a declared financial market, or ADI, first determine whether the commission is within the generally applicable rate for that function. This may require obtaining market surveys, industry fee schedules, or expert advice. For specified agents (not ADIs), identify every beneficiary who has an interest in the property. Send each such beneficiary a written consent form explaining the proposed commission, the function, the rate, and the beneficiary’s right to refuse. Obtain signed written consent. If a beneficiary is legally incapable (e.g., a minor or person with a disability), obtain consent from a legal guardian or note the incapacity. If a beneficiary cannot be found after reasonable search, document the search steps. If a beneficiary cannot be ascertained (e.g., unborn or unascertainable class), document the reason. Keep all consents and documentation in the estate file. For ADI commissions, no consent is needed, but still document the basis for concluding the rate is generally applicable.

Related party deposits and loans (reg 10). Before depositing estate money with or lending estate money to a related corporation, confirm that the transaction is authorised by the trust instrument or other instrument (e.g., a deed of variation or court order) or is of a kind that could be made under the Trustee Act 1958 or a corresponding interstate Act. Record the specific authorisation. Then engage an independent adviser (such as a lawyer, accountant, or investment adviser who is not an employee of State Trustees and not connected with the related corporation) to provide advice. The adviser must be paid by State Trustees, not from estate funds. The advice must state that the proposed deposit or loan is on terms and conditions no less favourable than those applying to deposits or loans with corporations similar in nature to the related corporation, and that it will not disadvantage the estate. Obtain the advice in writing and keep it on file. If independent advice cannot be obtained at a reasonable cost, consider forgoing the transaction.

Prescribed periods (reg 11). If section 36(2) of the Act requires any action (e.g., filing accounts, making a return), do so within the half-year periods: by 30 June for the period 1 January to 30 June, and by 31 December for the period 1 July to 31 December. Mark these dates in the compliance calendar.

General compliance. Maintain a register of elections filed, commissions paid, and related party transactions. Train staff on the frozen Act and these regulations. Monitor the sunset date (14 March 2036) and participate in any consultation on replacement regulations. For any doubt, seek legal advice on the frozen Act’s provisions, which are not reproduced here.