Disputes and Removal of State Trustees in Victoria
Melbourne Estate Litigation Lawyers
Have you had issues dealing with a State Trustees? We’re here to help.
At Attwood Marshall, our Melbourne team has extensive experience in representing clients who have suffered as a result of putting their trust in public trust offices and who want to seek compensation for the mismanagement of their affairs, or that of a loved one.
We regularly receive enquiries from people who want to remove the State Trustee from their appointment as financial administrator or executor of a deceased estate. There have been many allegations made against them alleging unfair commissions and lack of transparency of fee structures, gross misconduct, and financial mismanagement.
We want to help the most vulnerable in our community and will fight for their rights and ensure they have access to alternative options in Melbourne when it comes to Will-drafting services, executor services and financial administration.
If you are involved in a dispute like this and need help to understand your rights and what steps to take to have a State Trustee removed and replaced, our team will help you every step of the way.
Book online now
Free Info Pack
To find out more about resolving public trustee disputes, provide your details below and our Information Pack will be sent to your inbox.
Did you see ABC’s Four Corners Investigation of the Public Trustee?
On Monday 14th March 2022, ABC’s flagship investigative program, Four Corners, aired “State Control: Australians trapped, stripped of assets and silenced”.
The report investigated the stories of Australians who say they have been virtually abducted by the state, stripped of their assets and stopped from speaking out.
You can see Attwood Marshall Lawyers Legal Practice Director, Jeff Garrett, in the report. He comments on the Public Trustee’s mismanagement in relation to people’s affairs, the conflict of interest in relation to dealing with the funds of the people they manage, and the exorbitant fees the Public Trustee charge clients under their management.
“By definition, they are only acting for vulnerable people because those people have lost the capacity to handle their own affairs. And that’s where it gets really sticky because they owe those people a fiduciary duty, a statutory duty to do the best thing by them and look after their affairs. And they’re failing miserably in relation to that issue,” explains Jeff Garrett.
In Victoria, the State Trustee is charged with handling estates where a legally permissible Will is not present, or it is unclear who should be the executor of the Will. The State Trustee is typically appointed to handle the estate administration by a court. The appointment of a financial manager or guardian is usually made by the Victorian Civil and Administrative Tribunal (VCAT). Even in circumstances where someone has given powers of attorney to their family members, this can be overturned by tribunals who can then appoint the State Trustees.
People may also choose to appoint the State Trustee to act as their executor if they have sought the Will writing services of the State Trustees.
Other products and services the State Trustees offer, includes:
- Will writing
- Drafting Powers of Attorney
- Executor services
- Trustee services
- Personal financial administration
More than 9,500 Victorians who, due to mental illness, disability, injury, or the fact they may be unable to fully manage their own legal and financial affairs, engage with Victoria’s State Trustees and their services. There is a general assumption that Victoria’s State Trustees is the most accessible and trusted option for Will writing and trustee services. However, there are alternative options available, including the opportunity to appoint a private trustee or professional to administer deceased estates or manage the financial affairs of the most vulnerable people in our community.
In most cases, yes. If you would like to remove State Trustees from their role as financial administrator for someone who may not have capacity to manage their own affairs, you can apply to a tribunal or court. This involves making an application to have an alternative private trustee, or individual, replace the State Trustee (if it is deemed appropriate to do so).
To have the State Trustee removed, you must make an application to a tribunal or court for a substitute decision-maker. If the incoming administrator (otherwise known as decision-maker) seeks payment (for example if you were to appoint a private trustee company to replace the State Trustee) the application must be made to the court to seek the removal of the State Trustee from their role, and to replace them with the new private trustee.
A court application is required due to the fact payment is involved. When payment is involved, the court must approve the decision and ensure it is appropriate.
The process to apply to remove the State Trustee is as follows:
- Select an appropriate replacement administrator (decision-maker) and ensure they are suitable for the individual and their family.
- Make the court application.
- Provide evidence, including:
- The individual’s capacity, or lack of, to manage their own financial affairs
- The opinion of the family in relation to the current situation with the State Trustee. The court will want to ensure that the family supports the application to have the State Trustee removed.
- Details about the events that took place that caused the relationship to break down with the State Trustee.
- Evidence that the private trustee is a suitable replacement.
- Financial reports to show the individual’s financial affairs and the nature of their protected estate.
In most cases, a spouse, parent, or close family member of the individual who is subject to the application, can make the application to have the State Trustee removed and substituted by an alternative trustee.
State Trustees promote their Executor services, particularly to the people who engage them to have their Will drafted.
An Executor is appointed to represent someone after they die. The Executor is responsible for obtaining probate and the administration of the deceased’s estate.
Executor services include:
- calling in the assets;
- paying the deceased’s debts;
- distributing the assets to the beneficiaries;
- defending any litigation or claims made against the estate; and
- any other matter that requires a representative’s input on behalf of the estate.
If you choose to appoint the State Trustee as your Executor, they will often charge significantly high fees that they are then entitled to take out of the estate after you have died and your estate has been administered.
The State Trustees fee structure is extremely complex and can be difficult to understand. Their fees usually include an ability to charge a percentage of the value of the assets in the estate, which means fees are not charged based on the actual work undertaken by the Executor in completing their duties.