Queensland: Public Trustee Act 1978 (Qld)

Public Trustee Act 1978 An Act about the public trustee Part 1 Preliminary 1 Short title This Act may be cited as the Public Trustee Act 1978. 2 Commencement This Act shall commence on a day to be fixed by proclamation. 3 [Repealed] 4 Crown to be bound This Act, except where otherwise provided, binds the Crown not only in right of the State but also, as far as the legislative power of Parliament permits, the Crown in all its other capacities. 5 Provision about the Child Protection (International Measures) Act 2003 The Child Protection (International Measures) Act 2003 includes provisions about the exercise of jurisdiction under this Act. 6 Definitions In this Act— appointed board member, for part 8A, see section 117V. benefit, in relation to a person, includes insurance on the life of that person and the education and advancement of that person. board, for part 8A, see section 117V. board meeting, for part 8A, see section 117ZO(1). board member, for part 8A, see section 117ZB. body includes a corporation, unincorporated body or association including a partnership or association of persons. common fund means a common fund established under section 19. corporation means the corporate sole constituted by the public trustee under the name The Public Trustee of Queensland. court means the Supreme Court. election to administer means an election filed pursuant to section 30 or 31. employer, in relation to an amount of unpaid wages, for part 8, division 1, see section 98. estate under administration means any property held, administered, managed or controlled by the public trustee in any capacity (including, for example, as personal representative, trustee, administrator, guardian, committee, manager, liquidator or receiver), and includes— (a) an estate under management as defined in section 64; and (b) an estate under administration that is administered jointly with someone else. former employee, for part 8, division 1, see section 98. grant of administration means— (a) probate of the will of a deceased person; or (b) letters of administration of the estate of a deceased person, with or without the will annexed, for general, special or limited purposes; or (c) an order to administer; or (d) an election to administer; and a reference to the making of a grant of administration includes the filing of an election to administer. incapacitated person means an incapacitated person as defined in section 64. instrument includes any deed, will, agreement for a settlement, Act of Parliament or order of a court or any number of such instruments, whether made or passed before or after, or partly before and partly after, the commencement of this Act. official solicitor means the official solicitor to the public trustee provided for in section 16. order to administer means an order of the court made pursuant to part 3 authorising the public trustee, either solely or jointly with someone else to administer the estate of a deceased person, whether general or special or limited in any way. owner, in relation to property, includes any person having an estate or interest in the property. permanent board member, for part 8A, see section 117V. personal information means information or a document about an individual's affairs, but does not include— (a) information or a document that is publicly available; or (b) criminal history information within the meaning of section 117ZM(5); or (c) statistical or other information, or a document containing statistical or other information, that could not reasonably be expected to result in the identification of the individual to whom the information or document relates. personal representative means a person having a grant of administration. person under a legal disability— (a) for section 59—see section 59(1A); and (b) otherwise—means a child. proceedings includes any action, cause or matter and any other procedure, in court or otherwise, whether formal or informal, (including criminal proceedings as to property, the submission to arbitration or the lodging of a caveat) directed to the assertion, enforcement or protection of any right. property includes real and personal property of every description or kind and wherever situated, any estate or interest therein, any debt, any thing in action and any other right or interest whether legal or equitable (including, without prejudice to the generality of the foregoing, rights as to rescission, avoidance or restitution). public trustee means— (a) as an individual—the Public Trustee of Queensland; or (b) in any other case—the corporation. registering authority means the registrar of titles or anyone else required or permitted to record interests in property. stock includes stock (whether debenture, inscribed or otherwise), shares, debentures, units and notes (secured or otherwise) and other like investments. trust includes— (a) implied and constructive trusts; and (b) cases where the trustee has a beneficial interest in the trust property; and (c) the duties incidental to a personal representative's office; but does not include the duties incidental to a mortgaged interest. trustee means a person who administers a trust. unclaimed moneys fund means the account maintained pursuant to section 25. unpaid wages, for part 8, division 1, see section 98B. Part 2 The public trustee and Public Trust Office 7 Public trustee and Public Trust Office (1) There is a Public Trustee of Queensland and an office called the Public Trust Office. (2) The Public Trust Office consists of the public trustee and the office's staff. 8 Corporation sole of public trustee (1) The corporation sole constituted by the public trustee is continued under the name The Public Trustee of Queensland (the corporation). (2) The corporation— (a) is a body corporate with perpetual succession; and (b) has a seal; and (c) may sue and be sued in its corporate name. (3) The corporation represents the State. (4) Without limiting subsection (3), the corporation has all the State's privileges and immunities. (5) The corporation has all the powers of an individual and may, for example— (a) enter into contracts; and (b) acquire, hold, dispose of, and deal with, property; and (c) appoint agents and attorneys; and (d) engage consultants; and (e) fix charges, and other terms, for services it supplies; and (f) do anything necessary or convenient to be done in the performance of the public trustee's functions under this or another Act. (6) The corporation also has the powers conferred on it by this or another Act. (7) The corporation may exercise its powers inside and outside Queensland. (8) Without limiting subsection (7), the corporation may exercise its powers outside Australia. (9) The corporation is declared to be an excluded matter for the Corporations Act, section 5F, in relation to the whole of the Corporations Legislation. 9 Provisions about public trustee (1) The public trustee is to be appointed by the Governor in Council. (2) The public trustee is to be appointed for a term of not longer than 5 years. (3) The public trustee is subject to the Minister, but is not subject to any officer or employee of the department. (4) The public trustee is entitled to be paid the remuneration and allowances decided by the Governor in Council. (5) The public trustee ceases to hold office if the public trustee— (a) resigns by signed notice given to the Minister; or (b) finishes a term and is not reappointed; or (c) is removed from office by the Governor in Council under subsection (6). (6) The Governor in Council may remove the public trustee if the public trustee— (a) is found guilty of an indictable offence or an offence against this Act; or (b) engages in misbehaviour; or (c) becomes incapable of performing the duties of the public trustee because of physical or mental incapacity; or (d) is incompetent; or (e) contravenes subsection (7); or (f) without the Minister's leave and without reasonable excuse, is absent for 14 consecutive days or 28 days in a year. (7) The public trustee must give written notice to the Minister of all direct or indirect financial interests that the public trustee has or acquires in a business or in an entity carrying on a business. (8) The public trustee holds office on the terms not provided for by this Act as are decided by the Governor in Council. (9) The public trustee is to be appointed under this Act, and not under the Public Sector Act 2022. 10 Acting public trustee The Governor in Council may appoint a person to act as public trustee during— (a) a vacancy, or all vacancies, in the office; or (b) a period, or all periods, when the public trustee is absent from duty or is, for another reason, unable to perform the functions of the office. 11 Staff of Public Trust Office The staff of the Public Trust Office are to be employed under the Public Sector Act 2022. 11A Delegation by public trustee (1) The public trustee may delegate the public trustee's powers under this Act to any person. (2) A power may be subdelegated if the delegation expressly allows the subdelegation of the power. (3) Without limiting subsections (1) and (2), the following powers may be delegated (and subdelegated)— (a) making an affidavit or statutory declaration required or permitted to be made by the public trustee, signing a document to be filed in a court, verifying an account or personally attending a court instead of the public trustee; (b) executing a transfer of property for the public trustee; (c) giving or signing a notice, consent, certificate, instrument or other document the public trustee is required or permitted to give or sign. (4) If, when exercising a power under a delegation or subdelegation under this section, the delegatee signs a document, the delegatee may add after the delegatee's signature the following statement or a statement to the following effect— 'Signed as delegate for the public trustee under section 11A of the Public Trustee Act 1978'. (5) A document purporting to be a document mentioned in subsection (4) is taken to have been properly signed by a delegatee of the public trustee under a delegation made under this section unless the contrary is proved. (6) Subsections (4) and (5) do not limit section 27A of the Acts Interpretation Act 1954. 11B Public trustee's seal (1) The public trustee's seal may be kept in as many facsimiles as the public trustee considers are necessary for the Public Trust Office's business. (2) The seal and any facsimile are to be kept in the custody directed by the public trustee and may be used only as authorised by the public trustee. 11C Contracts and transactions of public trustee not under seal Section 227 of the Property Law Act 1974 applies to the public trustee as if— (a) the public trustee were a body corporate within the meaning of the section; and (b) all necessary changes, and any changes prescribed by regulation, were made to the section. 11D Evidentiary provisions (1) Judicial notice must be taken of the appointment and signature of the public trustee. (2) Judicial notice must be taken of the imprint of the public trustee's seal appearing on a document and the document must be presumed to have been properly sealed unless the contrary intention is proved. (3) In any proceeding, anything done, or omitted to be done, by or purportedly by the public trustee, or someone else for or purportedly for the public trustee, must be taken to have been properly done, or omitted to be done, in the absence of evidence to the contrary. 11E Bond or other security not to be required A bond or other security must not be required from the public trustee for appointment to or acting in an office or capacity under this Act. 12 Sale of property by auction by authorised persons (1) Where the public trustee wishes to sell by auction land or goods in an estate under administration and such land or goods is or are situated at a distance of more than 20km from the usual place of business of a holder of a relevant auctioneer's licence, such land or goods may be offered for sale by auction at a time and place directed by the public trustee by a person authorised in writing by the public trustee and such person for the purpose of such auction shall not be required to take out an auctioneer's licence. (2) In this section— auctioneer's licence means— (a) an auctioneer licence under the Property Occupations Act 2014; or (b) a chattel auctioneer licence under the Motor Dealers and Chattel Auctioneers Act 2014. relevant auctioneer's licence means an auctioneer's licence under which the sale by auction of the land or goods would be authorised. 13 [Repealed] 14 [Repealed] 15 Declaration of secrecy Every member of the staff of the Public Trust Office, every agent of the public trustee and every member of The Public Trust Office Investment Board constituted pursuant to section 21 shall be bound to secrecy by declaration in the form approved by the public trustee. 16 Employment of solicitors etc. (1) The public trustee may, subject to the regulations, consult with and employ such solicitors, counsel, financial institutions, accountants and brokers or other persons as the public trustee considers necessary and may remunerate such persons and shall be entitled to be allowed and paid all charges and expenses so incurred. (2) Where, in the case of an estate under administration, the settlor or testator by the trust instrument has directed that a solicitor, accountant, broker or financial institution shall conduct the legal or other business of the estate, such person shall be entitled to act therein accordingly, but, in such case, the public trustee shall not be liable for the default of such person except to the extent to which the public trustee is entitled to be indemnified out of the estate under administration. (2A) Such person may be removed by order of the court upon the application of the public trustee or of any person interested in the estate upon cause shown, and, in such case, the court may appoint the public trustee or any other person to conduct such business or may make such other order as it thinks fit. (3) There may be an official solicitor to the public trustee, who shall be a barrister or solicitor of the Supreme Court. (4) The official solicitor shall be entitled to act as solicitor in any court or in any proceedings under the title of 'official solicitor to the public trustee' without the necessity of showing the official solicitor's own personal name and, on any change in the holder of the office of official solicitor, it shall not be necessary to give any notice of change of solicitor or otherwise formally to record such change. (5) Notwithstanding subsections (1) to (4), it shall not be necessary, when a solicitor other than a solicitor in private practice acts for the public trustee in any proceedings, for the proceedings to be conducted on behalf of the public trustee in the name of such solicitor or for documents filed or delivered on behalf of the public trustee in the proceedings to be endorsed with the name or place of business or address for service of the solicitor filing or delivering such documents, but only the corporate name of the public trustee and, where an address or place of business is required to be shown, the solicitor's address for service need be shown thereon. (6) Notwithstanding that the name of a solicitor does not appear on the record of any proceedings as acting for the public trustee, the public trustee shall be entitled to the same costs and expenses and in the same manner as if the name of a solicitor did appear on the record of the proceedings. (7) To remove any doubt, nothing in this section prevents the official solicitor from acting as barrister or solicitor for a person other than the public trustee. 17 Public trustee may fix fees and charges (1) The public trustee may, by gazette notice, fix fees and charges for services the public trustee performs or provides. (2) The fees and charges have effect from the day the notice is gazetted or a later day stated in the notice. (3) The fees and charges must be reasonable having regard to the circumstances in which the service is provided. (4) In particular, and without limiting subsection (3), the amount of a fee or charge must be decided having regard to the following— (a) the type and complexity of the service performed; (b) the degree of care, responsibility, skill or special knowledge required to perform the service. (5) Also, the gazette notice may provide that a fee or charge for a service is to be worked out according to— (a) a stated hourly, daily or other rate; or (b) the number or type of documents perused. (6) A gazette notice under this section is subordinate legislation and exempt subordinate legislation. 17A Priority etc. of fees and charges (1) The public trustee may retain or pay out of an estate the public trustee is administering, in priority to any other claims— (a) expenses (including liabilities) a trustee may retain or pay out of trust property, or that the public trustee considers are necessary or expedient for the management of the estate; and (b) fees payable for a service the public trustee provides. (2) The public trustee is to decide whether the fees and expenses payable under this section are to be paid from capital or income. (3) The public trustee has a general lien on all property comprised in an estate the public trustee is administering for the payment of— (a) fees and expenses payable, including fees and expenses payable under this section for the administration of the estate; and (b) costs, fees and allowances and charges earned by the official solicitor or another lawyer who is a public service officer for the public trustee in connection with a proceeding relating to the estate. (4) The public trustee's interest under subsection (1) or (3) in relation to personal property is declared to be a statutory interest to which section 73(2) of the Personal Property Securities Act 2009 (Cwlth) applies. (5) The public trustee has the same rights of lien a lawyer who is not a public service officer would have for costs and charges for work of a legal nature— (a) done by the public trustee or the official solicitor; or (b) done for the public trustee by a lawyer who is a public service officer. (6) In this section— personal property see the Personal Property Securities Act 2009 (Cwlth), section 10. 17B Costs etc. for proceedings (1) This section applies to a proceeding— (a) in which the public trustee is a party or is in any way interested; and (b) in relation to which the official solicitor or another lawyer who is a public service officer acts on behalf of, or otherwise represents, the public trustee. (2) The public trustee is entitled to costs and allowances for the acting or representation as if the official solicitor or lawyer were a lawyer in private practice and not a public service officer. (3) For taxing any bill of costs, fees for a barrister are to be allowed the public trustee and no item is to be disallowed (whether for barristers' fees or otherwise) merely because the fees were not paid before taxation. (4) The rules relating to costs in any court apply subject to this section. 18 Accounting If because of any act or omission on the part of the public trustee or any of the public trustee's officers or agents any money loss is incurred or any extra payment has been made, the amount involved may, with the approval of the Minister, be charged to profit and loss or any reserve fund of the Public Trust Office without further appropriation than this Act. 19 Common fund and investment thereof and of other moneys (1) Subject to this Act— (a) all moneys vested in or coming into the hands of the public trustee, howsoever arising, and whether directed to be invested or not, shall be held in 1 or more common funds (the common fund) and shall be invested by the public trustee; and (b) income earned by such investments shall be paid into the common fund; and (c) interest, at a rate to be from time to time prescribed, shall be credited at least annually, on a date to be from time to time fixed by the public trustee, to the respective estates having moneys in the common fund; and (d) investments may be made from the common fund in any of the investments in which under the Trusts Act 1973 trustees are authorised to invest trust funds and also in any class of investments from time to time approved for the purposes of this Act by regulation; and (e) investments made from the common fund by virtue of this subsection shall not be made on account of or belong to any particular estate under administration. (2) The public trustee may— (a) invest moneys belonging to an estate under administration in any investment which is authorised by the provisions of a governing trust instrument and, subject to the provisions of any such trust instrument, retain in the form in which it then is any investment existing when the trust becomes vested in the public trustee; and (b) invest moneys held by the public trustee on trust for any person under a legal disability or, when for special reason the public trustee considers it desirable that moneys should be separately invested, moneys belonging to any other estate under administration, in any investment in which trustees are authorised by law to invest trust funds; and (c) when the public trustee is the committee or manager of an estate under management or the manager of the estate of a prisoner under part 7 continue investments in the form in which they are when the public trustee becomes authorised to manage that estate, reinvest from time to time in similar investments and exercise, as fully and effectually as that person could do if the person were not under a legal disability or a prisoner to whom part 7 applies and if the person's estate was not being managed by the public trustee, all rights of that person as the holder of any stock or other investment, including the exercise, in whole or in part, of any rights arising thereout to acquire in the name of that person any stock, and for such purpose apply moneys belonging to that person, or sell or dispose of any of such last mentioned rights. (3) When an investment is made or retained in accordance with the provisions of subsection (2)— (a) it shall not form part of the common fund but shall belong to the particular estate under administration to which the moneys invested or the investments retained belong; and (b) income earned by it shall be credited to the particular estate under administration; and (c) any loss or deficiency in respect of it or of the moneys received therefrom or realised thereby shall be borne by the estate under administration. 19A Application of particular amounts (1) This section applies to— (a) fees and charges received by the public trustee; and (b) interest earned on amounts invested under section 19 and paid into the common fund. (2) The public trustee must apply the amounts— (a) first, to pay interest to the estates whose funds formed part of the amounts invested; and (b) after paying the interest, towards operating and capital expenses of the public trust office. 20 Advances in course of administration (1) The public trustee may make advances out of moneys standing to the credit of the common fund for the purposes of any estate under administration or about to be administered by the public trustee. (2) Where an estate is under administration and there is not sufficient money available to make payments required to be made on account of such estate, whether to the persons entitled thereto or to a share or interest therein or otherwise, the public trustee may advance and pay for or on account of such estate any sum of money (not exceeding in the whole one-half the total value of the property in the estate) which the public trustee is authorised or required to pay. (3) Where a person entitled to a share in an estate under administration desires an advance against the person's share, the public trustee may make advances to that person not exceeding in the whole one-half of the value of the share as estimated by the public trustee. (4) All amounts owing in respect of sums so advanced, with all interest thereon, shall be a first charge upon the estate under administration or the share advanced against, as the case may be, and shall bear interest compounded on quarterly rests at the rate of 12% per annum or such other rate as may from time to time be prescribed in substitution therefor or at such lesser rate as may be fixed by the public trustee in the particular case. (5) All interest received under this provision shall be paid into the common fund. (6) A certificate signed by the public trustee stating the amount owing for advances and interest on a specified date by the estate under administration or person to whom the advances were made and the share (if any) against which they were made shall be sufficient evidence of the facts until the contrary is proved. 21 Public Trust Office Investment Board (1) All investments of the common fund shall be controlled and managed by a board to be called The Public Trust Office Investment Board (the board). (2) The board shall consist of at least 3 members 1 of whom shall be the public trustee and the others of whom shall be appointed by the Governor in Council for such term as the Governor in Council shall specify in the appointment in each case and 1 of whom shall be an officer of the department administered by the Treasurer. (3) At a meeting of the board 2 members thereof shall form a quorum. (4) The chairperson of the board shall be appointed by the Governor in Council from among the members thereof and shall preside at all meetings of the board at which the chairperson is present and in the chairperson's absence or during any vacancy in the office of chairperson such 1 of those present shall preside as they shall choose between them. (5) Subject to subsection (6), the public trustee shall— (a) not invest funds from the common fund without the approval of the board first had and obtained; and (b) satisfy the board that every proposed such investment of funds by the public trustee is legally authorised and that the public trustee has done and executed or caused to be done and executed all such acts, matters, and things as the public trustee is, by this Act or by any other Act or law or by any relevant instrument, required to do and execute preliminary to such investment; and (c) account to the board continuously for every such investment made by the public trustee and produce to the board from time to time and at all times all such accounts, securities, and other documents, and all such information and reports as will enable the board to examine the then state of any such investment made by the public trustee or as may be required by the board; and (d) in the case of any such investment upon the security of a mortgage or other charge over property—report to the board any breach of any term or condition of such mortgage or charge and exercise against a defaulting mortgagor all such rights and remedies had and possessed by the public trustee as the board shall direct, and account to the board for the due and proper exercise by the public trustee of all such rights and remedies. (6) Notwithstanding anything hereinbefore contained this section shall not apply to the following matters, namely— (a) any advance made or to be made by the public trustee under and pursuant to the provisions of section 20 from moneys standing to the credit of the common fund in respect of any estate under administration or about to be administered by the public trustee; (b) any investment from time to time made by the public trustee— (i) in debentures issued by a Crown corporation or State instrumentality, which corporation or instrumentality is specially authorised to issue such debentures by the Act constituting such corporation or instrumentality, or in any loan issued by the Government of the Commonwealth or of any State; or (ii) on account of a particular estate, whether made pursuant to the provisions of section 19(2) or otherwise in exercise of the public trustee's powers; or (iii) of a portion of the unclaimed moneys fund as and when directed by the Governor in Council so to invest the same under and in accordance with the provisions of section 25; or (v) on interest bearing deposit with a financial institution; or (vi) with a dealer in the short-term money market, approved by the Reserve Bank of Australia as an authorised dealer, who has established lines of credit with that bank as a lender of last resort; or (vii) prescribed by regulation. 22 Temporary advances to the public trustee (1) In order to admit of the moneys in the common fund being kept closely invested or to provide moneys wherewith to make advances in connection with estates under administration, the public trustee may, with the approval of the Minister in each case, obtain advances from the Treasurer or other source by hypothecating securities held by the public trustee in respect of investments in the common fund. (2) Every such advance shall be for such period and at such rate of interest as are approved by the Minister. (2A) However, on the expiration of such period the advance may be renewed for the same or any other period, and so on from time to time. (3) The total amount of advances to the public trustee under this section outstanding at any 1 time shall not exceed $1,000,000. 23 Deficiency in common fund If the common fund is insufficient to meet the lawful claims thereon, the Treasurer shall, without further appropriation than this Act, pay such sums out of the consolidated fund as are necessary to meet the deficiency. 24 Inspection and audit of books of public trustee (1) The Minister, and any officer of the Minister's department authorised by the Minister in writing, shall have at all times access to all the books, accounts, documents, and papers in the Public Trust Office, and the public trustee shall at all times furnish to the Minister all such information as the Minister requires. (2) The Auditor-General Act 2009 shall apply to the public trustee and the Public Trust Office. 25 Unclaimed moneys fund (1) The public trustee must continue to keep the account called the Unclaimed Moneys Fund (the fund). (2) As soon as reasonably practicable after the end of each financial year, the public trustee must pay to the consolidated fund all amounts that, as at the end of the financial year, have been credited to the unclaimed moneys fund for 6 years or more. (3) The Minister may direct that the whole or part of amounts credited to the fund that have not been paid to the consolidated fund be invested in the following investments— (a) investments mentioned in section 21(6)(b)(i); (b) investments that may be prescribed by regulation. (4) Interest on the investments must be paid to the consolidated fund. 25A Budget and performance (1) For each financial year, the public trustee must develop and submit to the Minister a budget not later than the day the Minister directs. (2) During a financial year the public trustee may develop and submit to the Minister amendments of its budget. (3) The public trustee must not spend in a financial year more than the amount allowed in its budget for the financial year, unless the Minister approves a higher amount. 26 Balance sheet and accounts to be laid before Parliament The public trustee shall in every year not later than 31 August or the later day the Minister, by written notice, specifies transmit to the Minister, to be laid before Parliament— (a) a profit and loss account setting forth the total revenue and expenditure of the Public Trust Office during the year ended on 30 June last preceding or such other date as may be prescribed; and (b) a balance sheet setting forth the assets and liabilities as at 30 June last preceding or such other date as may be prescribed; and (c) a statement showing the position and investment of the unclaimed moneys fund. Part 3 Appointment as trustee or personal representative 27 Rights and duties to which public trustee may be appointed (1) Where any person or corporation may be appointed or act as a trustee, executor, administrator, next friend, guardian, committee, agent, attorney, liquidator, receiver, manager or director or to or in any other office of a fiduciary nature the public trustee may be so appointed or may so act. (2) Where an official liquidator may be appointed liquidator by a court or judge, such appointment may be made of the public trustee where, in the opinion of the court or judge, there are special reasons for so doing. (3) Notwithstanding subsections (1) and (2), the public trustee's appointment to any office or capacity shall, except where by this or any other Act it is otherwise provided, be subject to the public trustee consenting thereto. (4) The public trustee may charge and receive such fees and remuneration as are fixed under this Act, or if not fixed under this Act, as may be allowed by law, for acting in any capacity to which the public trustee may be appointed under this section. 27A Joint administration etc. by public trustee (1) The public trustee may apply under section 29 or 31(1) for an order to administer an estate, and may be granted the order, jointly with someone else. (2) The public trustee may file an election under section 30 to administer an estate jointly with someone else. (3) The court may, with the public trustee's agreement, consent under section 31(2) to the appointment of the public trustee to administer an estate jointly with someone else. (4) If the public trustee is appointed under section 31(2) to administer an estate and the consent of the court is unnecessary, the public trustee may, when filing in the court an election to administer, elect to administer the estate jointly with someone else. (5) The court may, with the public trustee's agreement, appoint the public trustee under section 31(3) to administer an estate jointly with someone else. (6) The public trustee may act under section 35 jointly with someone else. (7) This section does not limit the application of this Act when the public trustee acts alone. (8) If the public trustee jointly administers an estate or otherwise acts with someone else, this Act applies with all necessary changes and any changes prescribed by regulation. 28 The public trustee may hold as trustee for the Crown (1) If in the opinion of the Minister it is expedient that any moveable or immoveable property within or outside Queensland, which is wholly or partly used or held, or which it is proposed shall be wholly or partly used or held, by the Government of the State for governmental, administrative or departmental purposes, should be held by the public trustee for and on behalf of Her Majesty in right of the State, the Minister may authorise and direct the public trustee to purchase, accept, hold or take that property to be held upon trust for Her Majesty in right of the State. (2) It shall not be necessary for the public trustee to take or hold any such property outside the State in or by any name, style, title, or description other than The Public Trustee of Queensland. (3) Any person desirous of surrendering to the Crown any freehold land in Queensland which is under the Land Title Act 1994 may, with the approval of the Minister, in lieu of transferring the land to Her Majesty, transfer such land to the public trustee to be held upon trust as set forth in this section. (4) Freehold land under the Land Title Act 1994 accepted or taken by the public trustee under subsection (1) may be transferred under the Land Title Act 1994 to the public trustee as trustee under this section. (5) If in the opinion of the Minister it is desirable that the legal estate in any Crown land held or used for governmental, administrative or departmental purposes should be held by the public trustee, the Minister may grant such land to the public trustee in fee simple to be held upon trust as set forth in this section, and issue the deed of grant thereof in the name of the public trustee as trustee under this section. (6) The public trustee may execute all such deeds, conveyances, assurances, transfers, documents and other writings as may be necessary or expedient for the due execution by the public trustee of any trust declared by this section, and no person dealing with the public trustee in relation to the execution of any such trust shall be bound to inquire whether the public trustee is acting in the proper execution of the public trustee's powers hereunder. (7) The Minister may give to the public trustee such authorities and directions to purchase, accept, hold and deal with property to which this section applies as the Minister shall think fit, including either general directions as to the manner in which the public trustee shall exercise powers and perform duties as trustee in relation to any class or classes of matters or property, or directions, either specific or general, as to the manner in which the public trustee shall exercise powers or perform duties in respect of any particular matter or property, including a direction that the public trustee shall deal with such property in accordance with the direction of a specified Minister or other public authority, and the public trustee shall hold and deal with such property in accordance with such authorities and directions. (8) When acting as trustee under this section the public trustee shall represent the Crown and shall be a Crown instrumentality, and shall have and may exercise all the powers, privileges, rights and remedies of the Crown. 29 Circumstances in which public trustee may apply for order to administer (1) Where any person has died, whether before or after the commencement of this Act, being at the time of the person's death domiciled in Queensland or leaving property situated in Queensland and a grant of administration has not been made in Queensland to any other person, the public trustee may apply for and be granted an order to administer the estate of such person— (a) where the deceased is intestate; or (b) where the deceased left a will and— (i) the public trustee was appointed executor thereby; or (ii) the executors appointed thereby have renounced; or (iii) there is no executor willing and capable of acting in the execution of the will resident in Queensland; or (iv) every executor appointed by the will has died; or (v) no person has applied for probate or letters of administration with the will annexed within a period of 3 months from the death of the deceased; or (vi) the property or any portion thereof is liable to waste, and the executor is not known or can not be found. (2) Where part of an estate of a deceased person in respect of which a grant of administration has been made in Queensland is unadministered and the executor or administrator— (a) has died; or (b) has become bankrupt or incapable; or (c) is absent from Queensland or can not be found; the public trustee may apply for and be granted an order to administer the estate left unadministered. (3) On an application under subsection (1)(a) no further proof of the death and intestacy of the deceased shall be required than an affidavit that, after due inquiries, the public trustee is satisfied of the death and intestacy. (4) On an application under subsection (1) or (2)(a) the public trustee shall be entitled as of right to an order to administer. (4A) However, if some person who would be entitled to a grant of administration applies therefor the court may make a grant of administration to such person. (5) It shall not be necessary or required, unless the court for special reason in a particular case so directs, that the public trustee give notice of such application generally or to any person, except in the case of an application under subsection (1)(b)(v) or an application under subsection (2)(b). (5A) However, the court may in either of such last mentioned cases dispense with any notice which would otherwise be required. (6) Notwithstanding any other provisions of this section— (a) the court may, in any case where it might make a limited grant of administration to any other person, grant to the public trustee an order to administer similarly limited; and (b) the public trustee may, in any case in which the public trustee is entitled to an order to administer, apply for and obtain a grant of probate or of letters of administration as the case may be, or may propound a will in solemn form of law. (7) Where the public trustee is granted an order to administer with a will whereby any other person was appointed both executor thereof and a trustee thereunder, the public trustee shall, while the order to administer remains in force, by virtue thereof and without further appointment, be deemed to be appointed a trustee under the will in the place of such person. (8) In any case where the public trustee, pursuant to the provisions of this Act, applies for an order to administer or for a grant of probate or of letters of administration, or propounds a will in solemn form of law, the public trustee shall, unless the court otherwise orders in exceptional circumstances, be entitled to the public trustee's costs out of the estate and not be liable for the costs of any other person. 30 Election to administer estates under $150,000 without grant of administration (1) Where any person dies (whether before or after the commencement of this Act) domiciled in Queensland or leaving property situated in Queensland, and the gross value of the person's property in Queensland which would pass to the person's personal representative is estimated by the public trustee at the time of the election hereinafter mentioned not to exceed $150,000, and there is no grant of administration in force in Queensland, the public trustee may, in all cases where the public trustee is entitled to obtain an order to administer, in lieu thereof file in the court an election, in the form approved by the public trustee, to administer the estate with the will or on intestacy as may be the case. (2) Where a grant of administration has been made in respect of the estate of a deceased person and the person to whom such grant was made has died, whether before or after the commencement of this Act, leaving part of the estate unadministered in Queensland, and the gross value of such part of the estate so left unadministered in Queensland is estimated by the public trustee at the time of the election hereinafter in this subsection mentioned not to exceed the sum of $150,000, and no person has since the death of the last executor or administrator obtained a grant of administration de bonis non in respect of the estate, the public trustee may, in all cases where the public trustee would be entitled to obtain an order to administer, in lieu thereof, file in the court an election, in the form approved by the public trustee, to administer the estate so left unadministered. 31 Appointment of public trustee in the place of existing personal representative (1) Where a grant of probate or of letters of administration has been made to any person and part of the estate the subject of such grant is unadministered, the public trustee or any person interested may apply to the court, on the ground that it is for the benefit of any person who is or may be found to be interested in such estate that the existing executor or administrator be removed and that the estate be administered by the public trustee, for the granting of an order to administer to the public trustee and the court may make such order on the application as it thinks fit. (1A) The applicant, before making any such application, shall give 7 days notice thereof to the existing executor or administrator. (1B) However, for any reason which it considers sufficient the court may hear the application notwithstanding that such notice has not been given. (2) With the consent of the court, executors or administrators (with or without a will annexed) may, unless expressly prohibited, appoint the public trustee respectively executor or administrator, notwithstanding that any consent which would otherwise be requisite has not been obtained. (2A) However, if the gross value of the assets requiring administration, as estimated by the public trustee, does not exceed $150,000 and, should the consent of any person to the appointment of an executor or administrator be requisite, that such consent has been obtained, it shall not be necessary to obtain the consent of the court. (3) Where there are more executors or administrators than 1, the court may, on the application of any of such executors or administrators, appoint the public trustee respectively executor or administrator, notwithstanding that any consent which would otherwise be requisite has not been obtained. (4) When the court consents to an appointment pursuant to subsection (2) or makes an appointment pursuant to subsection (3), an order to administer shall be made in favour of the public trustee. (4A) When an appointment is made, pursuant to subsection (2), without the consent of the court, the public trustee shall file in the court an election to administer, in the form approved by the public trustee. (5) This section applies whether or not the date of the will (if any) or of the death of the deceased person or of the grant of probate (if any) or of the letters of administration is before or after the commencement of this Act. (5A) Subsections (2) to (3) apply to an executor whether or not the executor has obtained a grant of probate. (6) Whenever under this section any executor or administrator with the will annexed appoints the public trustee executor or administrator, the public trustee shall, by virtue of the appointment, be also the trustee in respect of any trust created by the will— (a) where the executor or administrator was trustee; or (b) where there was no trustee in existence; at the date of the appointment of the public trustee. (7) On any application under this section the court may make such order or orders as it thinks fit. 32 Effect of order to administer (1) Subject to this Act, when an order to administer is made the public trustee shall have the same powers over the property of the deceased as the public trustee would have had if probate or letters of administration of such property had been granted to the public trustee in the like case and the same consequences shall follow in other respects, and any reference in any other Act or law to probate or letters of administration or a grant of administration or representation or other like expression shall, unless the context otherwise requires, be construed to include a reference to an order to administer. (2) Upon obtaining an order to administer, the title of the public trustee to any property in the estate and to the rents and profits thereof, shall relate back to and be deemed to have arisen upon the death of the owner of such property as if there had been no interval of time between such death and appointment. (3) However, any acts lawfully done by a prior administrator shall be as valid and effectual as if they had been done by the public trustee, and any rights exercisable by such prior administrator shall vest in and be exercisable by the public trustee. 33 Consequences of election (1) On an election to administer being filed the public trustee shall be— (a) the administrator in intestacy or with the will; (b) the administrator of the estate or of the estate left unadministered; as the case may be, and the filing of an election shall, for the purposes of any Act or law, have the same effect as the making by the court of an order to administer. (2) If, after filing an election to administer, the gross value of the property to be administered is found to exceed the sum of $180,000, the public trustee shall, as soon as practicable thereafter, file in the court a memorandum under the public trustee's hand stating the fact, and proceed in the ordinary manner to obtain an order to administer. (3) If, after filing an election to administer, the public trustee finds— (a) that the deceased person who was supposed to have died intestate has died testate; or (b) that the document annexed to the election as the testator's last will is not the last will or is not the sole last will of the testator, but has been superseded by a later will which is believed to be the testator's last will; or (c) that the deceased person who was supposed to have died testate has died intestate, and that the document annexed to the election as the testator's last will has no testamentary validity or effect; or (d) that the said election is invalid, ineffective or for any other reason ought not to have been filed; the public trustee shall, as soon as practicable, file in the court a memorandum under the public trustee's hand stating the facts and revoking the election, whereupon the election shall be revoked accordingly and the public trustee shall be at liberty to file a fresh election to administer under this section or otherwise proceed in accordance with the facts and the provisions of this section shall apply to any such fresh election as if it had been the election which had originally been filed. 34 Court may order administration of estate by public trustee instead of by court Where proceedings have been instituted in the court for the administration of an estate, and by reason of the small value of the estate it appears to the court that the estate can be more economically administered by the public trustee than by the court, or that for any other reason it is expedient that the estate should be administered by the public trustee instead of the court, the court may order that the estate shall be administered by the public trustee, and thereupon (subject to any directions by the court) this section shall apply as if an order to administer had been granted to the public trustee. 35 Administration of small estates Where the value of the assets of the estate of a deceased person coming into the hands or under the control of the public trustee in respect of which estate the public trustee would be entitled to file an election does not, apart from the value of any interest in land, exceed $75,000, the public trustee may apply such assets in or towards the payment of any claim of which the public trustee has knowledge or to the persons entitled thereto, without filing an election to administer and it shall not be necessary for the public trustee to cause advertisements to be published calling on creditors to prove their debts. 36 Powers of public trustee pending grant (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. (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. (1B) In subsection (1)— acts and things includes withdrawing an amount from an account of the deceased person with a financial institution. (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— (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. (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. (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. (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. (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. (7) When the public trustee is acting under this section— (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. 37 Power of public trustee in relation to devises in certain cases Where the public trustee is, pursuant to any provision of this Act, administering the estate or part of the estate of a deceased testator, and the testator has by the testator's will devised land and— (a) the public trustee is satisfied that the debts and liabilities of the testator or the funeral expenses of the testator or the expenses of administration for which the land is liable could not be fully satisfied without recourse to the land; or (b) the devise is (absolutely or subject to any condition and whether such devise takes effect immediately or subject to any prior interest) to an infant, or a person residing beyond the State, or whose whereabouts are unknown, or as to whom it is not known whether the person is alive or dead, or who has died and who has no person acting in the administration of the person's estate; or (c) the testator had before the testator's death sold or disposed of the land but had not transferred the land in pursuance of such sale or disposition; the public trustee shall, notwithstanding the provisions of any law to the contrary, be entitled to have transmission of the said land entered up to the public trustee as trustee in the proper register, and shall have the same powers and authority to deal with that land as though the same had by the will of such testator been devised to the public trustee upon trust and, without limiting the powers of the public trustee in other respects, the public trustee shall, notwithstanding any provision of the testator's will to the contrary, have power to raise such sum or sums of money as the public trustee considers sufficient for the purpose of discharging any debts or liabilities charged upon the testator's estate or for the payment of which such estate may be made available, by mortgage or by sale or by lease, at the best rent obtainable and for such duration as the public trustee thinks proper, of the land so devised or any part thereof. 38 Public trustee may be appointed new or additional trustee (1) The public trustee may be appointed as a new trustee or as an additional trustee in the same cases, in the same manner and by the same persons or court as if the public trustee were a private person. (1A) However, the public trustee shall not be appointed as a new or additional trustee otherwise than by a court, or pursuant to the order of a court, where the trust instrument contains a direction to the contrary. (2) When the public trustee is appointed under this section as a new or additional trustee, the public trustee shall, subject to this Act, have the same powers, authorities and discretions and act as if the public trustee had been originally appointed a trustee. 39 Appointment of public trustee as sole trustee (1) Notwithstanding the fact that any governing instrument may provide for or direct the appointment of 2 or more trustees, trustees appointed under such instrument, including personal representatives whose duties continue in the nature of a trusteeship after their administration is closed, or any other person or persons having the power to appoint new trustees thereof may, unless expressly prohibited, appoint the public trustee as sole trustee under the instrument without obtaining the consent of the court, and the public trustee may in any such case lawfully act as sole trustee. (2) Where there are more trustees, or persons having power to appoint a trustee, than 1, any 1 trustee, or any 1 of those persons having power to appoint a trustee, may apply to the court to have the public trustee appointed sole trustee. (3) Where to the appointment of a trustee the consent of any person is requisite, and such person refuses to consent to the public trustee being appointed, or where the person to consent is a person under a legal disability, or is absent from Queensland, an appointment of the public trustee may be made without such consent if the court consents thereto. (4) On any application under this section the court may make such order or orders as it thinks fit. 40 When public trustee being custodian trustee or statutory trustee may act as general trustee (1) Where by reason of any of the events enumerated in section 12(1)(a) to (h) of the Trusts Act 1973 there is no managing trustee capable of acting in the execution of a trust of which the public trustee has been appointed custodian trustee under the provisions of section 19 of that Act, the public trustee may act as managing trustee and shall have all the powers given to managing trustees by section 19 of the Trusts Act 1973 until such time as new managing trustees are appointed, but it shall not be obligatory for the public trustee to so act. (2) Nothing in this section affects the power of any court or person to appoint new managing trustees, but no such appointment shall take effect until notice thereof in writing is given to the public trustee. (3) Where the public trustee, apart from the provisions of this subsection, is a statutory trustee within the meaning of the Trusts Act 1973, the public trustee shall, until some other person becomes trustee, have all the powers given to and may in every respect act as a trustee who is not a statutory trustee. 41 Advisory trustees (1) In the administration as trustee of any estate under administration the public trustee may act with an advisory trustee or advisory trustees as herein provided. (2) An advisory trustee or advisory trustees may be appointed— (a) by order of the court made on the application of any beneficiary or of any person on whose application the court would have power to appoint a new trustee; or (b) by the trust instrument; or (c) by any person having power to appoint new trustees. (3) Where the public trustee acts with an advisory trustee, the trust property shall be vested in the public trustee and the public trustee shall have the sole management and administration thereof as fully and effectually as if the public trustee were the sole trustee. (3A) However— (a) the public trustee may consult the advisory trustee on any matter relating to the estate under administration; and (b) the advisory trustee may advise the public trustee on any matter relating to the estate under administration. (4) In cases of difference between the public trustee and an advisory trustee, either the public trustee or the advisory trustee may apply to the court for directions and the directions shall be final, and shall bind both the public trustee and the advisory trustee. (5) No person dealing with the public trustee shall be concerned to inquire as to the concurrence or otherwise of the advisory trustee or be affected by notice of the fact that any advisory trustee has not concurred. (6) The power of appointing a new advisory trustee when exercisable by the continuing advisory trustee shall be exercised by the public trustee alone, but the public trustee shall have the same power of applying to the court for the appointment of a new advisory trustee as is possessed by any other person. (7) In determining the number of trustees for the purposes of the Trusts Act 1973, an advisory trustee shall not be reckoned as a trustee. (8) A regulation may provide, subject to any provisions of the trust i