Public Trustee Frequently Asked Questions

We have compiled a list of all frequently asked questions (FAQs). If you have any further questions, please contact your nearest Public Trustee branch or call 1800 068 784

  • Wills FAQs

    We have compiled a list of frequently asked questions (FAQs) on Wills. If you have any further questions related to Wills or other topics, please contact your nearest Public Trustee branch or call 1800 068 784

    • What is a Will?

      A Will is a document that states how you would like your assets to be distributed when you die and the person/ organisation you would like to be responsible for carrying out your wishes.

      Your Will is probably the most important document you will ever sign, so it is advisable that you have it prepared by an expert like the Public Trustee.  You will have the support of specialist accountants, client account managers and legal professionals, who will ensure you achieve the best possible outcomes.

    • Who can make a Will?

      You can make a Will if you are over 18 years of age and have legal capacity. If you wish to make a Will and are under 18 years and have never been married, you can apply to the Supreme Court.

      To have legal capacity to make a Will, you must know that you are making a Will, understand the nature and effect of the proposed Will and that you are distributing your property according to your own intentions.

      If you are under 18 years and married, you can make a Will. Also, if you are under 18 years and are about to be married, you can make a Will in contemplation of that marriage. Your Will becomes valid when that marriage takes place.

    • Why should I have a Will?

      Having a professionally written, up-to-date Will is important for a number of reasons.

      Having a Will can:

      • ensure the right people are provided for when you die;
      • enable your assets to be distributed according to your wishes;
      • minimise disagreements among those who expect to benefit from your estate;
      • help those who are responsible for managing your estate understand how you would like your affairs managed;
      • enable your estate to be settled efficiently.

      While everyone’s situation varies, some of the reasons why you should have a Will and estate plan are:

      • YOU decide how your estate will be distributed;
      • YOU decide who will take care of your minor children;
      • YOU will decide who your executors will be;
      • to potentially avoid a lengthy estate administration process – it will save your family or loved ones unnecessary distress at an already difficult time.

    • Why choose The Public Trustee to be my executor?

      Once you make your Will with us and appoint the Public Trustee as your executor, you can have peace of mind knowing that we will administer your estate fairly, impartially and in the best interests of all concerned.

      • We keep beneficiaries informed of the progress of your estate administration by: explaining, understanding and consulting them before any major decisions are made.
      • We carry out your instructions and your dedicated client account manager will ensure that the well-being of all beneficiaries is paramount.
      • The time to complete the administration of your estate will depend on the size of your estate and the terms of your Will.
      • The Public Trustee works with banks, insurance companies, real estate agents and all organisations connected with your assets.
      • We arrange payment of any outstanding bills and collect any money that is owed to your estate. If you own a business, we will arrange for it to carry on or be sold (according to your instructions and in accordance to the law).

      What you can expect from the Public Trustee

      Reliability – We are a Tasmanian owned business and have been serving the community for over 160 years – and we will always be here for you.

      Understanding – All of our staff are familiar with the natural confusion and grief that follows death. We will help those left behind with understanding and compassion.

      Experience – Officially established in 1853 the Public Trustee continues to provide professional and experienced estate services to all Tasmanians. This experience leads to a high level of competence and genuine understanding of client needs.

      Expertise – The Public Trustee has experienced professional staff to protect your interests. This impartial expertise allows the Public Trustee to carry out your instructions bias free.

    • What do I bring to my Will appointment?

      Essential items to bring:

      To ensure we are as efficient with your time as possible, please bring the following items along to your appointment:

      • current proof of identity such as a driver’s license or passport;
      • reading glasses if you need them;
      • a list of your assets and their worth;
      • a list of the people you wish to be beneficiaries, including their full names (correctly spelt) and age;

      Optional items to bring:

      Your Beneficiaries

      • Names, ages and addresses of your parents, spouse and children (adopted or natural).
      • Names, ages and addresses of any person you wish to be included in your Will.

      Your House

      • Where is the title?
      • Is your property held as joint tenants or tenants in common?
      • Is there a Body Corporate in place?
      • If possible, bring the title with you to the interview and we will lodge it in our safe custody.

      Your Shares

      • Security Reference Number – this can be found on a dividend statement.
      • Are the shares held jointly or individually?
      • Acquisition details – when did you acquire the shares and for how much?

      Your Prepaid Funeral

      • Prepaid funeral plan/policy or funeral bond.

      Your Bank Accounts

      • Bank account statement with account numbers.

      Your Superannuation Details

      • Member number.
      • Do you have a binding nomination?

      Your Insurance

      • Policy documents relating to home, contents, motor vehicle, funeral, life, health or any other policies held.
      • Do you have a nominated beneficiary in relation to your funeral or life insurance policy?

      Your Furniture & Effects

      • Estimated value of these items.
      • Estimated value of any specific items of higher value.

      Your International Assets

      • If you have any international assets, please bring in any information related to these assets.

      Your Liabilities

      • Do you have any outstanding liabilities, such as a home loan or otherwise? 
      • This includes loans to family members. Please supply documentation with respect to the family loan.

      Other Information

      • Your wishes with respect to burial or cremation.
      • Your wishes in relation to guardianship of any infant children.

    • When should I update my Will?

      Just like everything in life, it is important that your Will is up-to-date. We recommend that you review your Will every 3 to 5 years, or as your circumstances change.

      For example:

      • you bought or sold  an asset (e.g. a house/ business);
      • you married, divorced or entered into a significant relationship;
      • you gained a new child, grandchild or stepchild;
      • one of your children divorced, separated or entered into a significant relationship;
      • your children now have stepchildren;
      • you retired;
      • your spouse or partner died;
      • one of your beneficiaries died or became incapacitated;
      • you want to change the beneficiaries of your Will;
      • you want to nominate the guardian of your minor children.

      If you would like to make a Will or update an existing one, please fill in the below form and or contact your nearest Public Trustee branch.

    • Does getting married or divorced affect my Will?

      The simple answer is “yes”, if you get married or divorced it does affect your Will!

      Getting married

      When you get married your existing Will is revoked, unless that Will was made in contemplation of the marriage. Any provisions made for your spouse will be valid, but not the provisions made for children or others you may have included in your Will.

      If you do not update your Will, Government legislation will determine how the remainder of your estate is distributed. This may not reflect your wishes, causing disputes and delays for your spouse and loved ones.

      Getting divorced or entering into a de facto relationship

      If you have a Will and get divorced your Will is still valid but any provisions for your ex-spouse will be invalid. If this occurs, Government legislation will determine who will get those assets.

      If you have a Will and are separated but not divorced, the Will remains valid as will any provisions for that ex-spouse.

      A de facto partner can also make a claim on the estate if they can prove they were in a significant relationship with the deceased. Under the Relationships Act 2003 a significant relationship is defined as existing for a continuous period of at least 2 years (this includes same sex couples) or resulted in the birth of a child.

      These situations can be very complicated and it is for these reasons that we recommend you review your Will whenever there is a change in your relationships.

    • Who can challenge my Will?

      The validity of your Will can be challenged on several grounds. These can include:

      • failure to meet the formal requirements of a Will – such as not being signed by the testator and two witnesses;
      • the Will maker (testator) was not of sound mind;
      • the testator was unduly influenced or pressured by another person/s when making the Will – this is called duress.

      In Tasmania, if a person dies and their dependants feel that they are left ‘without adequate provision for proper maintenance and support’ they could make an application for further advancement under the Testator’s Family Maintenance Act 1912. However, only the following people can make a claim:

      • the surviving spouse or partner of the deceased;
      • the children of the deceased, including adopted and stepchildren;
      • the parents of the deceased if the deceased had no spouse or children; and
      • a divorced spouse or ex-partner who is receiving or is entitled to receive maintenance from the deceased at the date of death.

      What matters may the Court take into account?

      • The total value of the deceased’s estate;
      • the circumstances and needs of the claimant;
      • whether by current community standards the deceased had an obligation to provide for the claimant;
      • the means and needs of competing beneficiaries and claimants;
      • the character and conduct of the person making the claim;
      • the nature and quality of the relationship between the claimant and the deceased;
      • the reasons of the deceased, as far as they are ascertainable, for leaving his or her property in a particular way.

      A claim must be started within three months after the date of probate or letters of administration being granted. However, this period may be extended by the Court.

      Being in the class of people who can challenge does not mean that they will be successful.

      If you are concerned about somebody challenging your Will, please talk to our staff about what you can do to minimise a successful challenge.

    • What happens if I don’t have a Will?

      If you die without making a valid Will, this is called dying “intestate”. State law will then determine how your estate is distributed. Unfortunately, this often means that your estate isn’t distributed according to your wishes.

      In Tasmania, distribution is made following the Intestacy Act 2010 formula. In order for the estate to be administered somebody needs to apply to the Court for authority, similar to probate. This authority is called letters of administration and the person authorised is the administrator.

      The administrator that the Court selects may not necessarily be the person who you would have selected if a Will was made. The duties of an administrator are similar to an executor and can include paying debts, collecting assets, finalising tax affairs and distributing the assets in accordance with the Intestacy Rules. The administrator must establish the family tree using certificate evidence which may be an expensive and time-consuming task depending on who are the next of kin or if they live overseas.

      The Public Trustee can take on this role if next of kin agree to the appointment, but the Public Trustee is not automatically assigned to take on the administrator's role.

      Looking after intestate matters can be a complicated process. The Public Trustee can administer estates when someone else is appointed executor but asks us to take over their role. For those estates where family members are widely scattered or are not close, our in-house genealogist is highly successful in tracing relatives.

      For more information, see FAQ 10 Who inherits my assets if I don't have a valid Will?

    • Who inherits my assets if I don’t have valid Will?

      If a person dies intestate, without a Will, or not all the assets have been accounted for in a Will (partially intestate), legislation simply nominates who will benefit from the estate; this is carried out using a strict statutory formula to your next of kin.

      The estate does not pass to the Government unless the deceased has no living relatives, and extensive efforts to find family have been exhausted.

      The Tasmanian Intestacy Act 2010 details who will benefit from an intestate estate.  It can be summarised as follows:

      The surviving spouse will inherit the whole estate unless there are children from another relationship of the deceased. Where there are children from another relationship the surviving spouse is entitled to the following:

      • statutory spousal legacy of $350,000 (adjusted to CPI);
      • tangible personal property of the deceased;
      • half of the remainder (if any). The remaining half of any residue is to be divided between all children of the deceased.

      If there is more than one surviving spouse (e.g. a separated husband or wife and a de facto partner) each spouse is entitled to share in the estate.

      If there is no spouse the residue of the estate is to be divided between all children of the deceased.

      If there is no spouse or children the estate will go to the parents.

      If there are no parents the estate will go to siblings in equal shares.

      If a sibling has passed away, their share will go to their children.

      If there are no siblings it will go to the grandparents.

      If there are no grandparents, the estate will be distributed in equal shares amongst all the deceased’s aunts and uncles. If an aunt or an uncle has passed away it will go to their children (the deceased’s first cousins).

      Only when none of the above family members can be found will the estate go to the Government.

      A spouse of the deceased is defined as a person who:

      • was married to the deceased at the time of death; or
      • was party to a registered personal relationship, or
      • within the meaning of the Relationships Act 2003, with the deceased; or
      • was party to a significant relationship, within the meaning of the Relationships Act 2003, with the deceased immediately before death that either;
        • existed for a continuous period of at least 2 years; or
        • resulted in the birth of a child.

       

      NOTE: The way you own assets may also affect how your assets are distributed. For example, jointly owned assets automatically pass to the surviving owner(s) under the survivorship rule.

      For more information, see FAQ 9: What happens if I don't have a Will?

    • Can I use a do-it-yourself ‘Will Kit’ to make my Will?

      Preparing your own Will by using a generic do-it-yourself ‘Will kit’ is not recommended. A Will must follow a strict legal format, otherwise the Court may decide it is not valid. If your Will is thought to be ‘not valid’ then your assets will be distributed according to a predetermined formula and not as you intended or wished.

      If you are not legally qualified to prepare a Will, then you risk making mistakes, creating uncertainty or losing opportunities for good estate planning.

      In addition, unnecessary costs and delays in administration may result from problems associated with homemade Wills. It is easier and cheaper to ensure that your Will is correct whilst you are alive, than have your executor try and fix it after you die!  

       

    • No Will - What Happens?

      If you die without making a valid Will, this is called dying “intestate”. State law will then determine how your estate is distributed. Unfortunately, this may not always be as you had intended.

      In Tasmania, distribution is made following the Intestacy Act 2010 formula. In order for the estate to be administered somebody needs to apply to the Court for authority, similar to probate. This authority is called letters of administration and the person authorised is called the administrator.

      The administrator that the Court selects may not necessarily be the person who you would have selected if a Will had been made. The duties of an administrator are similar to an executor and can include paying debts, collecting assets, finalising tax affairs and distributing the assets in accordance with the Intestacy Rules. The administrator must establish the family tree using certificate evidence which may be an expensive and time-consuming task depending on who are the next of kin or if they live overseas.

      How the Public Trustee can help

      Looking after intestate matters can be a complicated process.  The Public Trustee can also take over the role of administrator when someone dies without a valid Will (intestate). For those estates where family members are widely scattered or are not close, our in-house genealogist is also highly successful in tracing relatives.

      We often have individuals and legal practitioners refer intestacies to us due to our vast experience in dealing with these matters. If you are interested in referring an intestacy matter to the Public Trustee, please contact us.

      For more information, see FAQ 10 Who inherits my assets if I don't have a valid Will?

      How we work together

      It is advisable that you have your Will prepared by experts like the Public Trustee, to ensure your wishes are carried out the way you had intended. We would provide you with high-quality, independent and impartial advice.

      Step 1:

      The first step to creating a Will and estate plan is making an appointment. You can do this by either contacting your nearest Public Trustee branch or filling out the form on About Wills and having one of our friendly representatives contact you.

      Step 2:

      Once your appointment has been confirmed, it is recommended that you bring the following things with you:

      • current proof of identity such as a driver’s license or passport;
      • reading glasses if you need them;
      • a list of your assets and their worth;
      • a list of the people you wish to be beneficiaries, including their full names (correctly spelt) and age;

      Please remember to check your life insurance policies and retirement savings plans, in order to ensure you have named the people you wish to receive any entitlements once you pass away.  If no one is named, the money may form part of your estate and will be distributed according to the Intestacy Act 2010 formula.

      Step 3:

      When we make your Will, we will encourage you to include the following instructions:

      • who you are, with enough information to clearly identify that document as your Will;
      • the name of your executor;
      • clear instructions about how you want your assets to be distributed;
      • details of the persons to whom you wish to leave your assets and what should happen if someone you name dies before you;
      • your wishes regarding your funeral arrangements (i.e. cremation or burial); and
      • if applicable, the name of a guardian to care for your young children.

       

  • Estate Administration FAQs

    We have compiled a list of some frequently asked questions (FAQs) about estate administration.

    If you have any further questions relating to estate administration, please contact your nearest Public Trustee branch or call 1800 068 784

    • Intestacy – No Will

      If you die without making a valid Will, this is called dying “intestate”. State law will then determine how your estate is distributed. Unfortunately, this often means that your estate isn’t distributed according to your wishes.

      In Tasmania, distribution is made following the Intestacy Act 2010 formula. In order for the estate to be administered somebody needs to apply to the Court for authority, similar to probate. This authority is called letters of administration and the person authorised is the administrator.

      The administrator that the Court selects may not necessarily be the person who you would have selected if a Will was made. The duties of an administrator are similar to an executor and can include paying debts, collecting assets, finalising tax affairs and distributing the assets in accordance with the Intestacy Rules. The administrator must establish the family tree using certificate evidence which may be an expensive and time-consuming task depending on who are the next of kin or if they live overseas.

      The Public Trustee can take on this role if next of kin agree to the appointment, but the Public Trustee is not automatically assigned to take on the administrator's role.

      Looking after intestate matters can be a complicated process. The Public Trustee can administer estates when someone else is appointed executor but asks us to take over their role. For those estates where family members are widely scattered or are not close, our in-house genealogist is highly successful in tracing relatives.

    • What is an executor and what do they do?

      An executor is responsible for the administration of an estate and for carrying out the wishes set in the Will. Being an executor can be a complicated job and requires legal and financial understanding to do it successfully. That’s why many people prefer to appoint professionals such as the Public Trustee, rather than leaving the difficult task to their loved ones.

      If your executor acts inappropriately or is not administering the estate carefully and prudently, your beneficiaries can complain to the Supreme Court. This is the only right your beneficiaries will have before your estate is distributed. Also, if your executor obtains an estate by fraud or retains an estate, they can be liable to account to your beneficiaries for the assets of your estate.

      There are many steps involved in being an executor.

      The duties of an executor may include:

      • locating the Will;
      • making funeral arrangements;
      • meeting with family, legal and business associates;
      • determining the beneficiaries;
      • protecting assets such as ensuring property is insured, business interests are protected, collecting valuables and investing funds;
      • determining assets and debts (prepare statement of assets and debts);
      • applying to the Supreme Court for a grant of probate of the last Will (probate is a formal document that confirms the executor and gives them permission to administer the estate);
      • collecting assets;
      • making sure all claims and debts are received, assessed and paid if substantiated;
      • distributing assets according to the terms of the Will, including managing longer term trusts;
      • preparing and managing accounts;
      • preparing and lodging taxation returns;
      • defending litigation if there are any disputes.

    • Why should I appoint Public Trustee as my executor?

      Being an executor is a complex and time consuming task, it is wise to appoint a professional executor such as the Public Trustee. This minimises the workload and burden on your family and friends at a difficult time.

      The Public Trustee is an expert in estate administration and provides a full range of executor services. With our professional estate managers, accountants and solicitors we are a ‘one stop shop’ for estate administration and are equipped to deal with any issue that may arise.

      Benefits of appointing the Public Trustee as your executor

      When you appoint the Public Trustee as executor by making your Will with us, you can have peace of mind knowing that we will administer your estate fairly, impartially and in the best interests of all concerned.

      We keep beneficiaries informed of the progress during your estate administration, explaining, understanding and consulting with them before any major decisions are made.

      • We carry out your instructions and your dedicated client account manager will ensure the well-being of your beneficiaries is our first concern;
      • We work with banks, insurance companies, real estate agents and all organisations connected with your assets. We arrange payment of any outstanding bills and collect any money that is owed to your estate. If you own a business we will arrange for it to carry on or be sold according to your instructions and in accordance to the law.

    • How long will the administration of an estate likely take?

      This is the most commonly asked and often the most difficult question to answer, due to the circumstances of each estate being unique. Generally the estate administration process can take between 6-12 months. However, this can sometimes take more time depending on the complexity of the estate. The administration process can be quite complex and could involve our team of solicitors and accountants.

      The Public Trustee are consultative and will keep your beneficiaries informed during the progress of your estate administration. Our team will explain the situation and consult with them before any major decisions are made. However, your wishes will always be our paramount concern.

      In our experience, we have found that the process works best with open communication between families. This is to ensure that a common knowledge and understanding is achieved when distributing your assets.

    • Does the Public Trustee automatically sell all the assets in a deceased estate?

      No, the Public Trustee doesn’t automatically sell all the assets in a deceased estate. Before any assets are sold, there will be extensive discussion between your beneficiaries and our team. In some instances, assets such as the family home are not sold; they are transferred directly to the beneficiaries. If a Will requests that real estate is sold, we obtain a valuation and advice from real estate agents to ensure the best possible price. Your beneficiaries will be kept updated and given ample opportunity to provide their feedback regarding the sale process.

      How will you involve my beneficiaries?

      We will arrange a meeting with your beneficiaries to discuss the administration. At this meeting your beneficiaries will receive a copy of your Will. Beneficiaries who are unable to attend this meeting are sent a copy of the Will. This meeting is where we allocate a dedicated client account manager to manage your estate. Your beneficiaries will have direct contact with the same account manager throughout the administration of your estate.

    • What is Probate?

      Probate is essentially an official recognition that a Will is legally valid and gives permission to proceed with administering the estate. An application for a grant of probate is made at the Probate Registry of the Supreme Court. The grant is a document certifying that the Supreme Court recognises the authority of the executor or executors to deal with the estate. The executor can then administer the Will, for example collect assets, pay debts of the deceased and distribute the estate as directed.

      If you die without a Will, the grant is called ‘Letters of Administration’.

    • What are Letters of Administration?

      If you are to die without a Will (intestate) and there is no executor to administer the estate, usually it is your next of kin who will apply for a document called ‘Letters of Administration’. Letters of administration is the Court’s approval for someone to administer the estate of a person who dies without a Will.

      In most instances, letters of administration will be granted to your next of kin e.g. a spouse, domestic partner or child. Alternatively, if you have left a valid Will but your named executor is no longer alive, competent or willing to undertake the responsibilities involved with administering your estate, the Court may appoint someone else e.g. a beneficiary, to administer your estate according to the Will. This is called Letters of Administration with the Will annexed.

    • What is the difference between assets held jointly or as tenants-in-common?

      Assets jointly held known as ‘joint assets’ do not form part of your estate; they pass by survivorship to the surviving person. Assets held as ‘tenants-in-common’ are only partly owned and can be bequeathed (given) to a nominated beneficiary under your Will.

      For example, if a husband and wife own a home as ‘joint tenants’, when one spouse passes away the house would automatically go to the remaining spouse under the survivorship rule.  However, if siblings own a block of land as ‘tenants-in-common’ they can leave their share to whomever they like – it would not automatically pass to each other.

      There are two ways assets can be passed on:

      ·         one is via survivorship (jointly owned assets);

      ·         the other is through full estate administration. This is where the assets are fully owned by the deceased and passed on in accordance with their wishes.

    • How do I obtain Probate?

      To obtain a ‘Grant of Probate’, the executor must file various legal documents at the Supreme Court. The documents required include: the original Will, the death certificate and a complete statement of all assets and liabilities of the estate.

      For more information go to: www.supremecourt.tas.gov.au/probate_and_administration

      Do you need help administering an estate?

      If you are unsure about whether you can achieve all that is asked of you as executor, it makes sense to get help. Remember, it is unlikely the person who has died would have wanted to put you in a difficult or stressful situation.

      The Public Trustee are experts in estate administration and provide a full range of executor services with professional estate managers, accountants and solicitors. We are a ‘one stop shop’ for estate administration and are equipped to deal with any issue that may arise.

      If you are interested in referring an estate matter to us, please contact your nearest Public Trustee branch or call 1800 068 784.

    • How do I renounce my executorship?

      Many people appoint a friend or relative as their executor, as a way of acknowledging their respect or admiration for that person. However, the reality is that often people can be left with the burden of a loved one’s estate, during a time of grief and distress. Even being the executor of a simple estate can take a considerable amount of time. Being an executor requires knowledge of areas such as law, accounting, business management and finance. This can be an extremely difficult task for an everyday person without this knowledge.  As an executor you may be liable if any issues arise during your management of an estate.

      Just because you have been nominated as the executor does not mean you have to accept the role. Taking on the responsibility may not be the right thing for you and it is unlikely that the person who nominated you would have wanted to put you under stress. You are under no legal obligation to accept the appointment. If you don’t wish to act as executor you can ‘renounce’ and transfer the role to an independent professional executor, such as the Public Trustee.

      Once a person has obtained a grant of probate, it is generally not possible for that person to renounce the appointment.

    • Who may challenge a Will?

      The validity of your Will can be challenged on several grounds. These can include:

      • failure to meet the formal requirements of a Will – such as being signed by the testator and two witnesses;
      • the Will maker (testator) was not of sound mind;
      • the testator was unduly influenced or pressured by another person/s when making the Will – this is called duress. 

      In Tasmania, if someone dies and their dependants feel that they are left ‘without adequate provision for proper maintenance and support’ they can make an application for further advancement under the Testators Family Maintenance Act 1912. However, only the following people can make a claim:

      • surviving spouse or partner of deceased;
      • children of the deceased, including adopted and stepchildren (if a biological parent survives the deceased);
      • parents of the deceased, if the deceased had no spouse or children; and
      • a divorced spouse or ex-partner who is receiving or entitled to receive maintenance from deceased at the date of death. 

      What matters may the Court take into account?

      • The total value of the deceased’s estate;
      • the circumstances and needs of the claimant;
      • whether by current community standards the deceased had an obligation to provide for the claimant;
      • the means and needs of competing beneficiaries and claimants;
      • the character and conduct of the person making the claim;
      • the nature and quality of the relationship between the claimant and the deceased;
      • the reasons of the deceased, as far as they are ascertainable, for leaving his or her property in a particular way.

      A claim must be started within three months after the date of probate or letters of administration is granted. However, this period may be extended by the Court.

      Being in the class of people who can challenge does not mean that they will be successful. You should talk to our staff about what you can do to minimise the chance of someone challenging your Will.

  • Enduring Power of Attorney FAQs

    We have compiled a list of the most frequently asked questions about enduring powers of attorney. If you have any further questions please contact your nearest Public Trustee branch or call 1800 068 784.

    • What is an Enduring Power of Attorney?

      An enduring power of attorney is a legal document which allows appointed individual(s) or organisations to take care of your financial affairs. This document is important if you were to lose capacity in the future to make independent and informed financial decisions, or no longer wanted the responsibility.

      If the Public Trustee was nominated as your enduring power of attorney, we would be there to make independent and informed financial decisions on your behalf. If you can no longer manage your financial affairs (due to accident or illness) you will not be able to operate a bank account, pay bills, complete your tax return, manage your investments or do anything associated with your financial wellbeing.

      An enduring power of attorney allows you to choose who will take on your responsibilities if you lose capacity in the future. Acting as an attorney is a demanding job and requires a wide range of responsibilities. A sound knowledge of legal, business, financial and investment issues is crucial. It is important you choose someone whom you trust to act in YOUR best interests.

      Here are some facts about enduring powers of attorney:

      • An enduring power of attorney deals only with the management of your financial affairs, not lifestyle or medical decisions (this is called an enduring guardianship);
      • An enduring power of attorney’s responsibilities can begin after registration of the document at the Land Titles Office;
      • An enduring power of attorney is operative during your lifetime only (unless declared bankrupt) but automatically ceases on your death.


    • When should I make an Enduring Power of Attorney?

      Now! The time to prepare an enduring power of attorney is when you are healthy, aware and in control. It is designed to help you when you are unable to act for yourself. If you don’t have a formal arrangement already in place and you have a serious accident or become unwell, it can be very difficult to then appoint someone to act on your behalf.

      Situations can arise when you need someone to manage your financial affairs. For example, declining health, accidents or illness and the onset of age-related disabilities, may diminish your capacity to make clear decisions about your financial affairs.

      Preparing an enduring power of attorney ensures you protect yourself, those closest to you, and your property. Exercise your right to choose an attorney whilst you have the capacity to do so.

      If you lose capacity to make informed financial decisions, you won’t be able to operate a bank account, pay bills, sell property, complete your tax return, manage your investments, or deal with any of your financial affairs. 

    • What do I bring to an Enduring Power of Attorney appointment?

      As a rule of thumb, all you need to bring along when you make an enduring power of attorney appointment is:

      • current proof of identity such as a driver’s license or passport;
      • reading glasses if you need them;
      • a list of your assets;
      • details of who you wish to appoint as your Attorney, including their full names (correct spelling) and address.

    • Who should I choose as my attorney?

      You can appoint any adult with legal capacity who agrees to the appointment. If the need arises, your attorney will be in control of your financial affairs. It is vital that you have confidence in your attorney to make wise decisions on your behalf and have your best interests at heart.

      Acting as an attorney is a demanding job filled with wide ranging responsibilities. It requires a good working knowledge of legal, business, financial and investment matters. It may be unreasonable to ask a friend or relative to take on this role. That is why many people choose to appoint the Public Trustee as their attorney.

      Attributes of a good attorney

      Someone who…

      • is not busy with family and work commitments, to ensure that they have enough time for the role;
      • has financial and/ or legal skills, as some estates can be very complicated, especially if there are share portfolios or investment properties;
      • will keep personal finances separate from their own and keep accurate records of dealings and transactions;
      • can make potentially difficult decisions free from pressure and emotion (e.g. selling family home and contents);
      • is not susceptible to other forms of influence;
      • can be trusted to act in the best interests of the individual, now and in the future;
      • understands and accepts that they are liable for the decisions they make;
      • is accessible and accountable.

    • Why should I choose the Public Trustee to be my attorney?

      The Public Trustee is an independent, impartial and professional organisation. Its core business is estate, trust, and financial administration – we have done it for over 160 years and we do it well. We also offer you a number of distinct advantages:

      • Reliability – unlike an individual, our ability to act as your attorney is continuous and not affected by changes in personal circumstances. We have been in Tasmania, for all Tasmanians, since 1853 and we will be here for you when you need us.
      • Understanding – we are familiar with the natural confusion that follows sudden accident or illness. You can be assured that we will handle the situation with compassion and understanding.
      • Experience – we are Tasmania’s most experienced trustee organisation, yet we pride ourselves on offering up-to-date advice and service.
      • Expertise – we have experienced, qualified and professional staff including solicitors and accountants. This expertise ensures we make independent and impartial decisions on your behalf.

    • What will the Public Trustee do as my Attorney?

      Once you appoint us as your attorney, we will manage your financial affairs and our paramount concern will be protecting your financial interests.

      We will provide a dedicated client account manager to personally deliver services tailored to your needs. These include management of: real estate, bank accounts, investment portfolios, accounts, tax issues, as well as your dealings with government, community and private agencies. 

      What happens when I lose capacity and the Public Trustee is my attorney?

      If you have appointed us as your attorney, we rely on notification from someone who knows you (e.g. relatives or friends) to say you no longer have capacity to manage your financial affairs. Once this is received we will request written evidence from your treating doctor to confirm this. The enduring power of attorney document will then be registered with the Land Titles Office and we will begin to act.

      What happens when I lose capacity and the Public Trustee is my substitute attorney?

      If you have appointed us as your substitute attorney, your attorney will need to arrange written confirmation from your treating doctor to explain that you no longer have the mental capacity to manage your financial affairs. They are to bring this with them, along with their photo identification (e.g. drivers licence), when they collect your enduring power of attorney document.

      An appointment is necessary – please call your nearest Public Trustee branch or fill out the appointment form

      What happens if I still have capacity but no longer wish to manage some or all of my financial affairs?

      Often people activate their enduring power of attorney to free up time permanently or assist them for certain periods while they are unwell or overseas. This can include the collection of income; payment of bills; maintenance and management of property and processing of health fund accounts. If you have appointed the Public Trustee as your attorney, simply contact us and advise you no longer wish to handle your financial affairs. We will then arrange for your enduring power of attorney document to be registered with the Land Titles Office and begin to act.

      If you have appointed the Public Trustee as your substitute attorney, you will need to collect your enduring power of attorney document from our office. If you are unable to personally collect the power of attorney document, please contact our office.

    • When does an Enduring Power of Attorney begin to operate?

      An enduring power of attorney begins to operate after being registered at the Land Titles Office. Your signed enduring power of attorney remains inactive until you instruct us to have it legally registered.

      If you suddenly are incapable of managing your financial affairs due to illness or injury, your attorney can register your enduring power of attorney for you. They will then begin acting to protect your financial interests. Another reason might also be that you simply no longer want the responsibility of managing your financial affairs.

      Until your enduring power of attorney is activated, you will maintain full and independent financial control.  However, you can have peace of mind knowing that in your time of need there will be immediate access to essential assistance.

    • What if I no longer wish to manage my financial affairs, but still have capacity?

      Sometimes people wish to activate their enduring power of attorney in order to free up their time or to assist them during certain periods, for example: while they are unwell or overseas. This can include the collection of income to cover the cost of bills, property maintenance and management, and processing health fund accounts. If you have appointed us as your attorney, simply let us know that you no longer wish to handle your financial affairs. We will then arrange for your enduring power of attorney document to be registered with the Land Titles Office and begin to act.

      If you have appointed the Public Trustee as your substitute attorney, you will need to collect your enduring power of attorney document from our office. If you are unable to personally collect the power of attorney document, please contact our office.

    • What if there is no Enduring Power of Attorney?

      If you were to lose capacity to make your own decisions and have not appointed an enduring power of attorney, the Guardianship and Administration Board could appoint someone with the legal authority to make decisions on your behalf.

      To do so, the Guardianship and Administration Board would hold a hearing (involving family members and interested persons) to decide who they should appoint as financial administrator.

      The difference with an enduring power of attorney is – you get to choose who your financial administrator will be. You can also ensure that your loved ones do not have to worry about sorting out these affairs when you are in a vulnerable position and need care.

      For more information about making an application to the Guardianship and Administration Board, please go to: www.guardianship.tas.gov.au/process  or call on (03) 6165 7500.

  • Enduring Guardians FAQs

    We have compiled a list of the most commonly asked questions regarding enduring guardians. 

    • What are the differences between an Enduring Power of Attorney and Enduring Guardian?

      An enduring power of attorney is a legal document that allows you to appoint someone to manage your financial affairs.

      An enduring guardian is a person appointed to make your personal or medical decisions.

      Enduring power of attorney = financial affairs

      Enduring guardian = lifestyle and medical affairs

    • Why do I need an Enduring Guardian?

      If you have specific wishes in regards to your medical treatment, future lifestyle decisions and / or the person you would like to make those decisions, you should consider preparing an enduring guardianship document while you have the capacity to do so.


        


    • Who should I choose as my Guardian?

      Your guardian must be over 18 years of age. They cannot be a person who is involved in an administrative or professional capacity in your medical care or treatment (e.g. your GP). You also cannot appoint the Public Guardian as your enduring guardian.

      You can appoint single or joint guardians. You can also appoint an alternative guardian to make decisions on your behalf in circumstances where the original guardian is absent or incapacitated.

      Your guardian should be someone you trust and who knows your wishes and preferences. They should preferably be a person who is decisive and able to advocate on your behalf to medical staff, care providers and members of your family.

       

    • What is the difference between a health directive and an Enduring Guardian?

      Enduring guardianship is the legal form of appointment of a substitute decision-maker in areas concerning your general health and lifestyle. An Advance Care Directive can record your wishes and values that need to be considered before medical treatment decisions are made on your behalf. Discussions around these issues are best done with people who are important to you and your doctor.

      An Advance Care Directive can be attached to your enduring guardianship appointment. Alternatively, you can direct your enduring guardian to your separately written Advance Care Directive. Having your Advance Care Directive and enduring guardianship as separate forms provides you with greater flexibility to adjust your Advance Care Directive as your health conditions change without the need to execute a new Enduring Guardianship document. It also allows you to make your Advance Care Directive at a later time in consultation with your health care practitioner.

      For more information on Advance Care Planning for Healthy Dying please refer to the Department of Health and Human Services Palliative Care website http://www.dhhs.tas.gov.au/palliativecare

    • Can I fill in an Enduring Guardian document myself?

      You can prepare an enduring guardian document with the Public Trustee.

      If you would like to fill in the enduring guardian document yourself you can download a copy from: http://www.Guardianship.tas.gov.au/forms2

      Alternatively, the Office of Public Guardian can provide information concerning enduring guardianship and give advice on the powers of an enduring guardian - Monday to Friday between 9am and 5pm.

      Phone: (03) 6165 3444.

    • How do I register an Enduring Guardian?

      If you prepare an enduring guardian document with the Public Trustee once your guardian has signed the document we can register the document on your behalf.

      If you are registering the document on your own there are strict requirements for the witnessing of an enduring guardianship. The witnesses must be over 18 years of age and must not be related to you or to your guardians. Instruments of appointment that are not appropriately witnesses may be rejected for registration or invalidated after a review by the Board.

      Your guardian must have signed the instrument to indicate that he or she accepts appointment as your guardian.

      You can register an enduring guardian at Service Tasmania and pay a fee of $65.00. If you cannot afford to pay $65.00 you can present your enduring guardianship to Service Tasmania and ask that they submit a request for a waiver of the fees on your behalf. You should provide to Service Tasmania a written statement setting out the reasons for your financial hardship and why you cannot afford to pay $65.00.

      Upon registration the Board will return copies of the Instrument to you. You should provide a copy to your guardian(s), your care providers and to your medical practitioner.

      Where can I get an Enduring Guardian form?

      You can prepare an Enduring Guardian document with the Public Trustee.

      If you would like to prepare an Enduring Guardian document on your own you can download a copy from: http://www.Guardianship.tas.gov.au/forms2

      Alternatively, the Office of Public Guardian can provide information concerning enduring guardianship and give advice on the powers of an enduring guardian - Monday to Friday between 9am and 5pm.

      Phone: (03) 6165 3444.

  • Trusts FAQs

    We have compiled a list of the most commonly asked questions regarding Trusts. 

    • What are the duties of a Trustee?

      A trustee is an individual or corporation which administers the trust for the benefit of the beneficiary, in accordance with the terms of the trust.

      Some of the duties of a trustee are:

      • knowing the trust and the assets subject to it;
      • obeying the terms of the trust;
      • acting impartially between the beneficiaries;
      • exercising reasonable care;
      • investing the trust fund as directed by the trust or as the law provides;
      • seeing that trust funds are paid to the right persons;
      • acting jointly when there is more than one trustee;
      • providing prompt accounts; and
      • acting gratuitously unless the trust instrument or the law says otherwise.

      A trustee must not:

      • delegate his or her duties or powers; or
      • profit in any way from the trust property.

    • What are a Trustee’s powers?

      A trustee has a responsibility to protect your trust. The role of a trustee is regulated by legislation, common law and the deed or Will which creates the trust and demands prudence, impartiality and efficient administration.

      A trustee’s powers include:

      • selling, leasing, buying or mortgaging property;
      • repairing and improving property;
      • insurance;
      • carrying on a business;
      • paying maintenance and advancing funds.

      How the Public Trustee can help

      Being a trustee is an extremely demanding task that requires a good understanding of legal, accounting, investment and taxation matters.

      Because a trust is usually administered over a long period of time, it is wise to opt for a reliable and longstanding organisation such as the Public Trustee.

      If you would like more information on how the Public Trustee can look after a trust, please fill out the form below and one of our friendly representatives will be in contact to confirm your appointment, or please contact your nearest Public Trustee branch.

    • Why would you need to create a Trust?

      A trust will help provide ongoing support to your loved ones, once you have gone. Trusts not only benefit minors and individuals with disabilities! If someone in your family has a spending problem or some form of addiction, this will allow their expenditure to be monitored until a certain time that you deem appropriate. Trusts can be set up for those who are going through bankruptcy or someone who anticipates a separation or divorce.

      You can also specify how you would like your beneficiaries to benefit from a trust. For instance, you might want to set money aside for your grandchildren’s education. This will allow the trustee to manage the funds of your trust and monitor expenditure, to ensure the trust continues on for as long as required for your beneficiary.

      Trust administration is a complex area and many issues can arise if you are inexperienced. Therefore, it is very important you seek advice from professionals such as the Public Trustee.

      If you would like to know more about how a trust can suit your needs, please fill out the form below or contact your nearest Public Trustee branch.

    • How are Trustees appointed?

      A Trustee may be appointed in many ways including the following:

      • by a trust established under a Will (testamentary trust);
      • by the Supreme Court of Tasmania – for example when a minor (a  person under 18) or a person without legal capacity, receives damages for personal injury in a Court case; or
      • by legislation – where Parliament has provided for the protection of minors and/or persons without legal capacity who have received sums arising from the operation of statute e.g. Victims of Crime Assistance Act 1976, Workers Rehabilitation & Compensation Act 1988 and Motor Vehicles (Liabilities and Compensation) Act 1973.

  • Financial Administration FAQs

    We have compiled a list of the most commonly asked questions regarding financial administration.

    • Public Trustee has been appointed Financial Administrator – what happens next?

      One of the first things we will do is arrange a meeting to introduce you and/or your support person to your own client account manager. Your client account manager is supported by a range of professionals to achieve the best possible outcomes for you. This includes experts in investments, financial planning, property management, taxation and legal matters.

      In this meeting we will:

      • talk about our role and responsibilities;
      • explain the administration process, including investment of funds and managing any potential legal issues that may arise;
      • discuss an affordable budget that will take into account your wishes;
      • explain our fees and charges.

      The administration order is effective immediately, but it does take time to ensure everything is set up for us to manage your financial affairs. We need to re-direct your income to us, confirm your assets and liabilities, and establish budget arrangements, which can take up to six weeks.

    • How can I access my money?

      In many cases a personal budget will be set up for you and you may receive an allowance for personal spending. The allowance will generally be put into your bank account via Electronic Funds Transfer (EFT) so that you can access the funds directly.

    • How can a support person arrange a necessary purchase?

      You may wish to request money for a special purchase that was not included in your initial budget.  You and/or your support person must tell us of any additional purchases you wish to make, before making them.  We will then discuss the suitability of this purchase with you and/or your support person.

      This is to ensure that each purchase is affordable for you. If the purchase is approved, we will determine the best way for payment to be made. We usually pay the bill direct.

      If necessary, we can reimburse any money that your support person may have spent.  To do this, we will need evidence of the payment (such as receipts or a bank statement) before they can be reimbursed.

    • How can I have an administration order reviewed?

      If you wish to have the decision made by the Guardianship and Administration Board to appoint the Public Trustee as your administrator reviewed, you will need to contact the:

      Guardianship and Administration Board

      Phone: (03) 6165 7500

      Address: Level 2, 144 Macquarie Street, Hobart, TAS, 7000

      Email: guardianship@justice.gov.au

    • How is a Financial Administrator appointed?

      A financial administrator is appointed by the Guardianship and Administration Board.

      The Guardianship and Administration Board will only appoint a financial administrator when a person is aged 18 years and over and:

      • has disability; and
      • cannot make reasonable decisions about financial and property matters because of his or her disability; and
      • there is no less restrictive way of providing assistance.

      The power to act as administrator will cease on the death of the person.

      If you would like more information in relation to the process of appointing an administrator and/ or application forms please contact:  

      Guardianship and Administration Board

      Phone: (03) 6165 7500

      Address: Level 2, 144 Macquarie Street, Hobart, TAS, 7000

      Email: guardianship@justice.gov.au

    • Duties and responsibilities of a Financial Administrator

      There are three main duties of a financial administrator:

      • Act in the best interests of the person whose affairs they are managing;
      • Encourage and assist that person to become capable of managing their financial affairs;
      • Consult with that person and take into account, as far as possible, their wishes.

      Some tasks a financial administrator may be required to undertake include:

      • protecting assets;
      • dealing with personal property and real estate;
      • collecting income, such as dividends from shares, rents, pension entitlements or interest;
      • developing a budget management plan;
      • paying bills and accounts;
      • developing and maintaining an appropriate investment portfolio;
      • completing tax returns and pension reviews;
      • liaising with government, community and private agencies; and
      • providing full financial statements to the client and appropriate authorities.

    • Financial Administration & an Enduring Power of Attorney

      If a person over the age of 18 years with disability was unable to manage their own financial affairs, a financial administration order can be made by the Guardianship and Administration Board.

      In contrast, an enduring power of attorney is a legal document where an individual appoints another person/ or a statutory trustee company (such as the Public Trustee) to manage their financial affairs if they were to lose capacity or no longer wanted the responsibility.

      The distinct advantage of an enduring power of attorney is that it allows you to choose who will manage your financial affairs. In order to make an enduring power of attorney you need to have the necessary mental capacity to understand the meaning and effect of the document.

      The Guardianship and Administration Board will not appoint an administrator if there is a valid enduring power of attorney in place UNLESS the attorney is not acting in the best interests of the person concerned.

    • What ongoing support does the Public Trustee provide to its clients?

      When managing your everyday finances, we work hard to ensure your best interests are supported. We will carefully consider all the requests you make.

      We will send you a statement at least once a year showing all your transactions. If you have any questions about your finances please contact your client account manager.

    • How long will the Public Trustee act as your administrator?

      The Guardianship and Administration Board makes an order for a period of time (usually three years). The Board will review the order before it ends. At the review, the Board will check to see that your needs are being met and will decide if you still need our help.

    • Where you can go if you have a concern?

      If you have any questions, please contact your client account manager.

      If you are dissatisfied with the response from your client account manager, please go to our website to refer to our complaint process. Or contact the Public Trustee office by mail at:

      Public Trustee,

      GPO Box 1565,

      Hobart, TAS, 7001.

       

      Alternatively you can contact The Registrar at the Guardianship and Administration Board.

      Guardianship and Administration Board

      Phone: (03) 6165 7500

      Address: Level 2, 144 Macquarie Street, Hobart, TAS, 7000

      Email: guardianship@justice.gov.au

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