It concerns me that people view the Public Trustee as a “charity.” I am the lead lawyer on an estate matter which demonstrates quite the opposite.
Our clients are the beneficiaries of Mr Smith’s (name omitted) Will. Mr Smith died in December 2012, and nominated the Public Trustee to act as the executors of his Estate. He left a Will prepared by him, which, in sum – was astounding in terms of the powers Mr Smith believed he could exercise from the grave. Mr Smith also left a Family Trust, which Mr Smith had sought to leave “directions” to the Trustees of his Trust which were to become effective from his death. Mr Smith also left a company (which had been intended to be used for tax planning purposes during his lifetime). Both the Will and his Trust provided that the ultimate beneficiaries of each were, equally, our four clients (his daughter and her three children).
The Public Trustee (a division of the Queensland Government), exercising its discretionary powers to do so as an executor, employed the Official Solicitor (a division of the Queensland Government), which then collectively carried out a wide range of investigations to understand Mr Smith’s intentions in his Will – bearing in mind, however, that at all times the beneficiaries of his Will and his Trust were identical. In less than a year since appointment, the Public Trustee and the Official Solicitor have racked up over $100,000 in fees to the Estate. Remember, the only assets of the Estate are the house, a few accounts, personal effects, and the shareholding in company (which also only held a few accounts) and his interest (to the extent permitted by Law) to the Family Trust.
The sad fact – the Public Trustee and Official Solicitor are still “administering the Estate” and incurring further costs – but to whose benefit? Our clients have never disagreed the Estate and Family Trust ought to be distributed equally between them. There are no other claimants, there are no other debtors – there is, and has only ever been, them.
The Public Trustee and Official Solicitor serve an important function to Queensland and are critical in many aspects. However, the lesson to be learned from this is that the Public Trustee and Official Solicitor have obligations and agendas which may not be appropriate in all circumstances. Further, their services are not free and they are not a charity. Careful needs to be given anytime a person appoints a professional or the Public Trustee to act as an Executor or Attorney.
Nautilus Law Group offers a wide range of strategies for estate planning which can deal with virtually any fact scenario or client concern. We discourage apointment of professionals and the Public Trustee as “sole” Executors or Attorneys for many reasons, including, but not limited the above case study. There are times and consequences when appointments of professionals and/or the Public Trustee are the best, or only, option – but these options should only be considered after exhaustion of alternatives, such as appointing a panel of family and friends, with a professional or the Public Trustee being appointed as an arbitrator of disputes (or on a panel of three, being the third acting only in circumstances where the other two cannot resolve a unanimous decision).
Submitted by Katrina Brown BA JD ATIA TEP SSA, Senior Commercial and Property Lawyer, Nautilus Law Group
katrina@nautiluslaw.com.au
