Intestate estates guide

Trusteeship, where the State is called upon to administer a will, was mentioned in the Warrant for the Charter of Justice, 2 April 1787. Under this, the Court of Civil Jurisdiction was able to grant probate on wills and issue letters of administration for intestate estates. Between 1787 and 1818, when the earliest reference to intestate estates can be found, civil courts may have been responsible for a form of trusteeship to administer estates. Between 4 February 1814 and 13 October 1823 the Supreme Court of Civil Judicature possessed common law, equity and probate jurisdictions. In 1823 the New South Wales Act(4 George IV Act No 96) established an Ecclesiastical Jurisdiction of the Supreme Court to administer both testate and intestate estates.

The office of the Curator of Intestate Estates was created by An Act for the Better Preservation and Management of the Estates of Deceased persons in Certain Cases (1 Vic No 24, 1847). The Curator was responsible for a myriad of duties including the collection, management and administration of intestate estates. Administrative inefficiencies resulting from this arrangement ultimately led to the appointment of a prothonotary, formerly titled the Registrar, on 1 March 1856 by a Rule of Court, to act as Curator of Intestate Estates.

In 1898, under the Wills, Probate and Administration Act, the property of a deceased person was vested in the Chief Justice until probate, administration or an order to collect was granted. The Curator of Intestate Estates 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,
• an estate was likely to waste and executors or next of kin could not be found,
• was outside the jurisdiction or applied to the Curator to manage the estate,
• delay in administering would cause 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.

Other duties of the Curator

The Curator could also be called upon to administer, manage and discharge the debts and liabilities of any person presumed dead, intestate or if their will could not be located. In this case the Curator was required to await a court order prior to distribution of the estate. This followed newspaper advertisements in the vicinity of the person's residence and, if relevant, in the country where the person's next of kin may live. Real estate and other property could be sold after the expiry of a reasonable time had elapsed for the beneficiaries to be located, and money was to be invested in the Suitors' Fund or as directed by the Colonial Treasurer. The Curator and his 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.

In 1913 the office of the Curator of Intestate Estates was abolished under The Public Trustee Act, 1913 and the office of the Public Trustee was established. The functions of the Curator were taken over by the Public Trustee from 1 January 1914.