Report 124 (2009) - Uniform Succession Laws: Administration of estates of deceased persons - Law Reform Commission : Lawlink NSW

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Report 124 (2009) - Uniform Succession Laws: Administration of estates of deceased persons Table of contents Updates and background for this project (Digest) How to buy a copy of this report PDF version Terms of reference Participants Previous publications Glossary Preface Chapter 1. Preliminary 100 Short title 101 Commencement 102 Definitions 103 Relationships 104 Notes in text 105 Examples 106 Act binds all persons Chapter 2. Vesting of Estate 200 Initial vesting on death 201 Property subject to a general power of appointment exercisable by will 202 On the making of a grant of representation 203 On death of personal representative 204 On becoming an executor or administrator by representation 205 On executor or administrator by representation ceasing to hold office 206 Title relates back 207 Role of [public trustee] Chapter 3. Grants of Representation PART 1 SUPREME COURT’S JURISDICTION Division 1 General jurisdiction 300 Application of part 301 Jurisdiction 302 Jurisdiction is not dependent on particular factors relating to property, residence or domicile 303 Grant of probate and letters of administration may be made subject to limitations 304 Grant of representation—[Queensland] domicile 305 Grant of representation—domicile other than [Queensland] 306 Application for grant of probate or letters of administration to be made as provided under the rules of court 307 Supreme Court’s jurisdiction extends to making of orders available under the [insert local equivalent of Trusts Act 1973 (Qld)] Division 2 Grants of representation on inference or presumption of d308 Definition for division 309 Validity if death is inferred or presumed 310 Endorsement if death is presumed 311 Imposition of conditions Division 3 Limitations 312 Grants of probate and letters of administration PART 2 CAVEATS 313 Person objecting to grant of representation PART 3 RENUNCIATION 314 Application of part 315 Renunciation of executorship 316 Limited ability to apply for a grant of representation in another capacity 317 Retraction PART 4 PARTICULAR PROVISIONS FOR PROBATE AND EXECUTORS 318 Leave to apply for a further grant of probate 319 When an executor’s right to prove the will ends PART 5 PARTICULAR PROVISIONS FOR LETTERS OF ADMINISTRATION 320 Application of part 321 Priority for grant—will and [Queensland] domicile 322 Priority for grant—intestacy and [Queensland] domicile 323 Endorsement if grant made to creditor PART 6 ELECTIONS TO ADMINISTER—SIMPLIFIED PROCEDURE FOR SMALL ESTATES Division 1 Preliminary 324 Application of part 325 Definitions for part Division 2 No previous grant of representation 326 Filing an election to administer 327 Form and content of election to administer 328 Status of professional administrator after filing an election to administer 329 Value of estate must not exceed prescribed amount Division 3 Previous grant of representation 330 Filing election to administer 331 Form and content of election to administer 332 Status of professional administrator 333 Value of unadministered estate must not exceed prescribed amount Division 4 Estate administration fees 334 Fees that may be charged under this part PART 7 AUTOMATIC RECOGNITION 335 Effect of an interstate grant of representation for an Australian domicile 336 Review PART 8 CHAIN OF REPRESENTATION Division 1 Preliminary 337 Definitions for part Division 2 Becoming an executor or administrator by representation 338 Executor or administrator by representation Division 3 Rights and liabilities of executor or administrator by representation 339 Rights and liabilities Division 4 Renouncing executorship or administratorship by representation 340 Renunciation Division 5 Ceasing to hold office as executor or administrator by representation 341 Grant of probate to someone else—leave reserved 342 Grant of letters of administration to someone else—s 350 or 351 applies 343 Grant of representation is revoked, ends or ceases to have effect 344 Renunciation PART 9 PASSING OVER 345 Application of part 346 Definitions for part 347 Supreme Court’s general discretion 348 Offences relating to the deceased’s death 349 Person entitled to original grant of probate or letters of administration 350 Person who is executor or administrator by representation 351 Executor or administrator by representation—other applications PART 10 FOREIGN DOMICILE 352 Grant of representation when deceased person dies domiciled outside this jurisdiction PART 11 RESEALING FOREIGN GRANTS OF REPRESENTATION Division 1 Supreme Court may reseal foreign grants of representation 353 Resealing foreign grants of representation Division 2 Limitations on resealing 354 Foreign grant of representation must be held by particular persons 355 Interstate and overseas elections to administer 356 Value of estate must not exceed prescribed amount Division 3 Applications for resealing 357 Requirements 358 Holders of a foreign grant of representation 359 Persons authorised under a power of attorney 360 Trustee companies 361 Special circumstances Division 4 Supreme Court may impose conditions etc. 362 Imposing conditions on, or revoking, the resealing of a foreign grant of representation Division 5 Notice 363 Notification Division 6 Effect of resealing a foreign grant of representation 364 Resealed foreign grant of representation operates as a grant of representation 365 Particular provision for attorneys PART 12 DISPOSITION UNDER A GRANT OF REPRESENTATION AFFECTED BY A DEFECT 366 Disposition of property in reliance on a grant of representation PART 13 REVOCATION, ENDING OR CEASING OF EFFECT OF A GRANT OF REPRESENTATION 367 Definition for part 368 Disposition to personal representative is a valid discharge 369 Distribution or disposition by personal representative 370 Personal representative may recover particular distributions 371 Proceedings may be continued by or against new personal representative 372 Person living when grant of representation is made 373 Former personal representative—reimbursement and liability Chapter 4. Personal Representatives PART 1 ACCOUNTABILITY 400 Rights and liabilities of administrators PART 2 DUTIES 401 General duties 402 Providing information 403 Maintaining documents PART 3 FAILURE TO PERFORM DUTIES 404 Remedy if personal representative fails to perform duties 405 Relief from liability for failing to maintain documents PART 4 POWERS 406 Real and personal estate 407 On the making of a grant of representation 408 Carrying on a business 409 Subscribing to a relevant fund if carrying on a business 410 Postponing realisation of estate 411 Ratifying particular acts PART 5 OBTAINING THE SUPREME COURT’S ADVICE OR DIRECTIONS 412 Applying to Supreme Court for advice or directions PART 6 PROTECTION FOR PERSONAL REPRESENTATIVES 413 Definitions for part 414 Acting in accordance with Supreme Court advice or direction 415 Advertising intention to distribute PART 7 BARRING OF CLAIMS 416 Application of part 417 Definitions for part 418 Requiring claimant to start a proceeding 419 Applying to Supreme Court to make orders 420 Contesting personal representative’s right to indemnity 421 Service PART 8 WRONGFUL DISTRIBUTIONS 422 Application of part 423 Definitions for part 424 Rights of persons suffering loss 425 Rights of prescribed persons 426 Judgement limited to amount of wrongful distribution PART 9 APPROVAL OF ACCOUNTS 427 Definitions for part 428 Applying for approval of accounts 429 Approval of accounts by the Supreme Court PART 10 PAYMENTu FOR SERVICES 430 Definitions for part 431 Supreme Court may authorise payment for services 432 Supreme Court may reduce amounts that are excessive 433 Limited right to indemnity for costs in a particular case PART 11 INFORMAL ADMINISTRATION 434 Protection for limited payments made without production of a grant of representation 435 Persons acting informally Chapter 5. Administration of Assets PART 1 PROPERTY FOR PAYMENT OF DEBTS 500 Property that is an asset available for the payment of debts PART 2 SOLVENT ESTATES Division 1 Application 501 Application of part Division 2 Classes of property for payment of debts 502 Payment of debts 503 Effect of general direction or disposition for the payment of debts Division 3 Pecuniary legacies 504 Payment Division 4 Encumbered property 505 Definitions for division 506 Payment of property debts if there is no class 1 property 507 Payments of property debts if there is class 1 property 508 Abolition of rule in Lutkins v Leigh 509 Division does not affect other rights to payment PART 3 INTEREST 510 General legacies PART 4 INSOLVENT ESTATES 511 Application of part 512 Application of bankruptcy rules 513 Preference, right of retainer and the payment of debts by personal representatives Chapter 6. General PART 1 SUBSISTING CAUSES OF ACTION Division 1 Causes of action continue 600 Survival of causes of actions 601 Cause of action subsists in particular circumstances 602 Rights are additional 603 Part does not revive cause of action not previously maintainable Division 2 Proceedings for causes of action that continue 604 Application of division 605 Definitions for division 606 Proceeding may be brought against personal representative or beneficiary 607 Beneficiary is entitled to contribution or indemnity 608 Ranking of beneficiaries 609 Defences available to a beneficiary 610 Judgement limited to amount of distribution PART 2 SUPREME COURT PRACTICE AND THE REGISTRAR 611 Practice 612 Registrar’s functions and powers PART 3 CONCEALING WILLS ETC. 613 Supreme Court may require production of testamentary documents 614 Person fraudulently disposing of will liable in damages PART 4 OTHER PROVISIONS 615 Access to information held by personal representative—beneficiaries 616 Access to information held by personal representative—family provision applicants and creditors 617 Abolition of administration bond and sureties 618 Service 619 Approval of forms 620 Regulation-making power Chapter 7. Transitional Provisions and Repeal 700 Chapter 8. *Amendment of [Property Law Act 1974*] 800 Act amended 801 Insertion of new [pt 19A] ‘344A Definitions for [pt 19A] ‘344B Relationships ‘344C Application of [pt 19A] ‘344D General rule ‘344E Particular provision for substitutional dispositions ‘344F Gifts made in contemplation of the donor’s death ‘344G Insurance moneys ‘344H Joint property ‘344I Gifts to survivor of identified beneficiaries ‘344J Property the subject of a power of appointment ‘344K Property left to survivor of 2 or more of testator’s issue ‘344L Application of rules if testator and issue die or are presumed dead ‘344M Presumption of last resort ‘344N Re Benjamin orders Schedule 1: Priority of persons to letters of administration with the will annexed Schedule 2: Priority of persons to letters of administration on intestacy Schedule 3: Dictionary Appendix A: Provisions in probate and administration legislation not directly addressed by the model legislation PROBATE AND ADMINISTRATION ACT 1898 Storage and access to wills and other documents Application of income of settled residuary estate Mode of divesting land from a personal representative No dower or courtesy Spouse of intestate to accept value instead of partition Partition of land Personal representative not required to continue as a trustee during an enforced suspension of sale Delegation to NSW Trustee or a trustee company Personal representative may sign acknowledgement in lieu of conveyance Application for legacy etc Effect of neglect to file inventory or accounts Orders as to disposal of moneys in hands of personal representative Notice of ex-nuptial children Personal representatives may make maintenance distributions Protection of personal representative with respect to rents, covenants or agreements Facilitating probate from small estates Resealing: seal not to be affixed till duty is paid etc Resealing requirements not to apply to public officer or NSW Trustee Oaths Registrar to keep record of probates etc Rules of Court ADMINISTRATION (VALIDATING) ACT 1900 Tables Table of Cases Table of Legislation Bibliography**

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