What Is an Order to Administer?

Most people assume the Public Trustee only becomes involved if a family asks. That is not how the Act works. Under section 10 of the Public Curator Act (Chapter 81), the Public Trustee applies to the National Court for an order to administer, and the Court may grant it in any of seven situations.

The seven triggers

The National Court or a Judge may grant an order to administer the estate of a deceased person leaving property within the jurisdiction where:

1. the deceased left no executor, widow, widower or next of kin resident within the jurisdiction who is willing and capable of acting;
2. the named executors renounce probate and everyone primarily entitled to administration declines, by instrument filed with the Registrar, to apply;
3. probate or administration is not applied for within three months after the death;
4. after 30 days from the death, there is no reasonable probability of an application being made within three months;
5. the estate or part of it is liable to waste and the executor, widow, widower or next of kin is absent, unknown, not found, or asks the Public Trustee in writing to apply;
6. the estate or part of it is perishable or in danger of being lost or destroyed; or
7. great expense may be incurred by delay.

What the order does

Section 10(3) is short and powerful: except as otherwise expressly provided, the order gives the Public Trustee the same powers, rights and obligations in respect of the estate as if administration had been granted. Section 10(4) adds that all laws about administering deceased estates apply to administration by the Public Trustee.

In other words, the order is not a holding measure. It puts the Office in the position of the administrator.

Before granting it, the Court may under section 10(2) require the Public Trustee to give notices, cite persons or produce evidence — or may make a temporary order for collection and protection only, or limited to part of the estate.

You are supposed to be told

Section 13 requires that, within 21 days after an order under section 10, 11 or 12 is granted, the Public Trustee must publish notice of it in the National Gazette and in a newspaper published in the country, unless the Court orders otherwise.

Where the deceased was not a citizen, notice must also go to the consul of the country where the next of kin are supposed to reside, if there is one resident in PNG.

Gazettal is real notice in law, but it is thin notice in practice. If a relative has died and you are not sure what is happening, the Gazette and the Office are both worth checking rather than waiting.

When death is suspected but not proved

Section 11 covers the case where it is made to appear to the National Court that there is reasonable ground to suppose that a person has died, whether inside or outside the jurisdiction, leaving property within it. The Court may empower the Public Trustee to administer the estate.

Until revoked, that order lets the Public Trustee collect, manage and administer the personal estate, receive rents and profits from the real estate, and pay debts — as if the person were dead and an order had been made under section 10.

But there is a firm limit in section 11(3): the Public Trustee shall not distribute the assets without a further order of the National Court specially authorising it. Collect and preserve, yes. Hand out, only with the Court’s express permission.

If the family applies later

An order to administer does not lock the estate away for good. Under section 9, the National Court may still grant probate or administration to another person, in such manner and subject to such limitations as it thinks proper.

Two details matter:

• An application for that grant cannot be made until seven days after written notice of the intention to apply has been left at the Public Trustee’s office.
• Immediately on the grant, the Public Trustee’s interests, powers, rights and duties in the estate cease, and any unadministered portion vests in the new executor or administrator.

What does not cease is money. Section 9(5) preserves the Public Trustee’s right to commission and to necessary outlay, disbursements, costs and expenses — including the costs of appearing on the application. And section 9(6) keeps the Public Trustee liable for its own management of the estate up to the handover.