Trusteeship involves appointing the state to administer a will, marriage or other settlement, or of the state assuming the role of executor or administrator (in cases when the estate is intestate or the appointed administrator refuses to act, cannot be found, is outside the jurisdiction, is incompetent or deceased, or the right of administration is contested). It also includes the state acting as manager of the affairs of an insane or incapable person or of an infant.
Estates for which the State acts as trustee pass through probate following the usual procedures. As trustee the state may, like most executors, elect to administer properties rather than effect immediate sale, and may therefore authorise maintenance and repairs, collect rents, arrange sales and manage investments. Trusteeship may be carried out by agents appointed in various localities throughout the state.
While the earliest reference to separate records of intestate estates is 1818, it is likely that trusteeship was exercised in some form through the civil courts from the early years of the Colony. Trusteeship was given explicit statutory basis in the Colony with the passage of An Act for the Better Preservation and Management of the Estates of Deceased Persons in Certain Cases, 1847 (11 Vic No. 24,).
Under the Wills, Probate and Administration Act, 1898 [Act No 13, 1898], the property of a deceased person was vested in the Chief Justice until probate, administration or an order to collect was granted. The Curator could assume the responsibility of administering an estate if the deceased was intestate and had no direct heirs, the executors named renounced probate, there was no application for probate within three months of death, where an estate was likely to waste and executors or next of kin could not be found, were outside the jurisdiction or applied to the Curator to manage the estate, where delay in administering the will caused expense, or where the testator had appointed the Curator to act. The Curator in these cases had all the rights of an executor or relative of the deceased appointed in the will.
The Curator could also be called upon to administer, manage and discharge the debts and liabilities of any person presumed dead, and either intestate or the will could not be located. In this case the Curator was required to await a court order prior to distribution of the estate. This would follow newspaper advertisements in the vicinity of the person's residence and if relevant, in the country where the person’s next of kin may have lived. Real estate and other property could be sold after the expiry of a reasonable time for the beneficiaries to be located, and money could be invested in the Suitors' Fund or as directed by the Colonial Treasurer. The Curator and staff were not personally liable for any decisions and actions taken in conjunction with administering estates. The Supreme Court could rule for the return of money subsequently claimed by rightful beneficiaries.
The Public Trustee Act of 1913 [Act No 19, 1913] abolished the office of the Curator of Intestate Estates and transferred the powers and duties of this office to the Office of the Public Trustee established by the legislation. The act enabled the Public Trustee to be "the trustee of any will, settlement of other instrument creating any trust or duty belonging to a class which he is authorised by this act to accept". The responsibilities of the Public Trustee were essentially those of his predecessor.
His special powers however gave him wider control over the management of estates - to arrange the sale, exchange, lease, repair. Insure, pay taxes, assessments and other expenses, borrow money on the security of the property, bring or defend any action in civil or criminal courts pursuant upon the management of the estate, take bankruptcy proceedings against an individual or liquidation against a company, pay debts, obligations, costs and expenses, engage employees or consultants, execute all necessary legal instruments. The act placed upper limits on the value of the property, which could be sold or exchanged, and the amount of money which could be borrowed on the security of the property without the consent of the Supreme Court.
The Public Trustee may transfer the ownership of stocks and shares of any estate he administers into the name of the Public Trustee as Trustee of the estate The act empowered the Public Trustee to invest the moneys earned by estates he administers in public funds, government stock and securities and real securities.
The Public Trustee was also responsible for administering money held in trust for trusts for people unable to manage finds awarded to them. This often occurs under the Damages (Infants and Persons of unsound mind) Act 1929. This aspect of trust administration was often dealt with in suburban and district offices where the clients may be visited in their own homes and their needs assessed. The money may be required for education, and specialised living requirements. A further aspect of trusteeship carried out by the agency is that of acting as Powers of Attorney for those citizens who chose to give the government this role.
While there were some later changes in the administrative structures (in 1946-47), these do not appear to have involved significant changes in the nature of the activity.
Report of the Public Trustee for the year ended 30 June 1994