Home >> Dictionary Of Banking >> Abstract Of Title to Committee Of Inspection >> Capacities in Which the

Capacities in Which the Public Trustee May

trust, persons, act, trustees, executor, appointed, business, property and ordinary

CAPACITIES IN WHICH THE PUBLIC TRUSTEE MAY ACT.—The Public Trustee is authorised, if duly appointed, to act in any of the follow ing capacities : (1) Executor or executor and trustee of a will.

(2) Trustee or custodian trustee of a settlement (including a will).

(3) Administrator under a will or on an intestacy.

(4) Administrator of estates of small value.

(5) Judicial trustee.

(6) Administrator of the property of a convict under the Forfeiture Act, 1870, and (7) Investigator and auditor of trust accounts.

The Public Trustee has, in addition to cer tain privileges conferred upon him by the Act, all the same powers, duties, and lia bilities, and is entitled to the same rights and immunities, and is subject to the control and orders of the Court, as a private trustee acting in the same capacity. The Public Trustee may, however, decline either abso lutely, or except on conditions prescribed by the rules, to accept any trust, but he cannot decline on the ground only of the small value of the property. He may not accept any trust under a deed of arrangement for the benefit of creditors, nor for the administra tion of any estate known or believed by him to be insolvent, nor made solely by way of security for money, nor exclusively for religious or charitable purposes.

\VILLS.—The Public Trustee may be appointed even although the will was made or came into operation prior to January 1, 190S, either alone or jointly with any other person or persons as executor, or as trustee, or as executor and trustee of a will, and either as ordinary trustee or as custodian trustee. He may be appointed in the simplest form possible, e.g. : " l appoint the Public Trustee as the executor and trustee of this my will." The substitution of the name of the Public Trustee in a will already in existence for the names of the executors and trustees named therein, or the addition of his name, can be effected by a simple codicil.

The Public Trustee's acceptance of the office need not be invited at the time the will or codicil is made, although it is desirable that this course should be adopted when the trust is of an unusual nature.

On the death of a testator it is the duty of the co-executor, if any, to inquire of the Public Trustee if he is prepared to act. On acceptance of office he executes an instrument of consent.

Even after probate has been obtained an executor may, with the sanction of the Court, transfer the estate to the Public Trustee.

The Public Trustee may be appointed either as an original trustee of a settlement, or as a new trustee, or as an additional trustee. In the case of an existing settle ment the persons entitled to appoint the Public Trustee are the person or persons having power to do so under the settlement, or if there are no such persons, then the con tinuing or surviving trustees or their execu tors or administrators. Inquiry should first

be made if he will accept office, and notice should be sent to all persons beneficially interested to ascertain if they are agreeable to the appointment.

Private trustees may retire, either singly or together, in favour of the Public Trustee.

The Public 1 rustee may be appointed custodian trustee. On appointment, all securities and documents of title 'elating to the trust property, which would otherwise have remained in the custody of the ordinary trustees, are to be transferred to the Public Trustee ; but the management of the trust property, as distinct from the custody of the securities, is to remain in the hands of the ordinary or managing trustees.

Any person or persons interested in an estate, the gross capital value whereof can be proved to the satisfaction of the Public trustee to be under A,000, may apply in writing to the Public f rustee to administer the estate, and thereupon, unless he sees good reason to the contrary, if it appears to him that the persons beneficially entitled are persons of small means, the Public Trustee will undertake the administration.

Under the Public Trustee Act a trustee or beneficiary can obtain an audit of trust accounts without applying to the Court. Formal application must be made to the Public Trustee for the audit.

As a rule, the Public Trustee may not agree to act as ordinary trustee where the trust involves the carrying on of a business, ex cept where the carrying on of the business has for its ultimate object the sale or winding up of the business. But if he is to act merely as custodian trustee the carrying on of the business is immaterial, but he must not act in the management of the business, or hold any property which will expose the holder to any liability unless fully secured against loss.

The Public Trustee may employ such bankers and other persons as he may con sider necessary, arid in determining who is to be employed he is to have regard to the interests of the trust, and when practicable to take into consideration the wishes of the creator of the trust and of the other trustees, if any, either expressed or as implied by the practice of the creator of the trust or in the previous management of the trust.

The fees payable are : (1) capital fee ; (2) income fee ; (3) investment fee. They are due : Capital Fee.—Half on acceptance of the trust, the remainder gradually as the capital is diminished.

Income Fee.—This will be deducted from income.

Investment Fee.—This is payable on the making of an investment.