Trustee Companies Regulations 2006

i Trustee Companies Regulations 2006 S.R. No. 36/2006 TABLE OF PROVISIONS Regulation Page 1. Objectives 1 2. Authorising provision 1 3. Commencement 1 4. Revocation 2 5. Definitions 2 6. Election to administer estate 2 7. Prescribed manner of calculating value of perpetual trust 2 8. Exemptions from the Act 3 9. Prescribed deposit or loan 4 10. Prescribed period 4 11. Statutory declaration 5 __________________ SCHEDULE 6 Form 1 6 Form 2 7 Form 3 8 ═══════════════ ENDNOTES 18 -- 1 of 19 -- 1 STATUTORY RULES 2006 S.R. No. 36/2006 Trustee Companies Act 1984 Trustee Companies Regulations 2006 The Governor in Council makes the following Regulations: Dated: 28 March 2006 Responsible Ministers: JOHN BRUMBY Treasurer MARSHA THOMSON Minister for Consumer Affairs RUTH LEACH Clerk of the Executive Council 1. Objectives The objectives of these Regulations are— (a) to remake with amendments the Trustee Companies Regulations 1995; and (b) to prescribe other matters required to be prescribed by the Trustee Companies Act 1984. 2. Authorising provision These Regulations are made under section 55 of the Trustee Companies Act 1984. 3. Commencement These Regulations come into operation on 3 April 2006. -- 2 of 19 -- S.R. No. 36/2006 Trustee Companies Regulations 2006 2 4. Revocation The Trustee Companies Regulations 1995 1 are revoked. 5. Definitions In these Regulations— "authorised deposit-taking institution" has the same meaning as in the Banking Act 1959 of the Commonwealth; "licensed estate agent" means a person holding an estate agent's licence under the Estate Agents Act 1980; "livestock agent" means a person who carries on the business of stock or station agent; "prescribed financial market" means a prescribed financial market within the meaning of section 9 of the Corporations Act; "the Act" means the Trustee Companies Act 1984. 6. Election to administer estate (1) For the purposes of section 11A(1) of the Act, an election must be in Form 1 in the Schedule. (2) For the purposes of section 11A(2) of the Act, an election must be in Form 2 in the Schedule. 7. Prescribed manner of calculating value of perpetual trust For the purposes of section 21A(2)(a) of the Act, the value of a perpetual trust is the value of the assets of the trust at the time the administration fee is drawn without deduction of any liabilities. r. 4 -- 3 of 19 -- S.R. No. 36/2006 Trustee Companies Regulations 2006 3 8. Exemptions from the Act (1) Section 23(1) of the Act does not apply to a commission received by a person who is— (a) a licensed estate agent; or (b) a livestock agent; or (c) a participant in a prescribed financial market— for the performance of a function in relation to property that forms the whole or any part of an estate if— (d) the commission is an amount or is paid at a rate that does not exceed an amount or a rate generally applicable to the payment of commissions for the performance of functions of that kind; and (e) each beneficiary of the estate who has an interest in that property, other than a beneficiary who is not legally capable or whom the trustee company is unable to find, or who cannot be ascertained, has consented in writing to the performance of that function by that first-mentioned person. (2) Section 23(1) of the Act does not apply to a commission received by an authorised deposit- taking institution for the performance of a function in relation to property that forms the whole or any part of an estate if the commission is an amount or is paid at a rate, that does not exceed an amount or a rate generally applicable to the payment of commissions for the performance of functions of that kind. r. 8 -- 4 of 19 -- S.R. No. 36/2006 Trustee Companies Regulations 2006 4 9. Prescribed deposit or loan For the purposes of section 32 of the Act a deposit or loan may be made from an estate administered or managed by a trustee company to a related corporation other than an authorised deposit- taking institution if— (a) the deposit or loan to the related corporation is— (i) authorised, either expressly or generally, in the trust instrument or other instrument authorising the administration or management of the estate; or (ii) a deposit or loan which may be made by the trustee company under the Trustee Act 1958 or under any corresponding Act of another State or Territory; and (b) the trustee company obtains independent advice, otherwise than at the expense of the estate, that the proposed deposit or loan— (i) is on terms and conditions no less favourable than those applying to deposits or loans with corporations which are similar in nature to the related corporation; and (ii) will not disadvantage the estate. 10. Prescribed period For the purposes of section 36(2) of the Act, the prescribed periods are— (a) the period beginning on 1 January and ending on 30 June in each year; and (b) the period beginning on 1 July and ending on 31 December in each year. r. 9 -- 5 of 19 -- S.R. No. 36/2006 Trustee Companies Regulations 2006 5 11. Statutory declaration For the purposes of section 52 of the Act, a statutory declaration is in the prescribed form if it is in the form of Form 3 in the Schedule. __________________ r. 11 -- 6 of 19 -- S.R. No. 36/2006 Trustee Companies Regulations 2006 6 SCHEDULE FORM 1 Regulation 6(1) IN THE SUPREME COURT OF VICTORIA IN ITS PROBATE JURISDICTION IN THE MATTER OF the Estate of [name of deceased], deceased ELECTION TO ADMINISTER ESTATE UPON INTESTACY UNDER SECTION 11A(1) OF THE TRUSTEE COMPANIES ACT 1984 [Name of trustee company] elects under section 11A(1) of the Trustee Companies Act 1984 to administer the estate of the deceased. PARTICULARS 1. The deceased late of [last residential address of deceased] in the State of Victoria, [last known occupation of deceased], died on [date] intestate leaving property in Victoria the gross value of which is estimated by [name of trustee company] at the time of this election not to exceed $50 000. 2. [Name of trustee company] is entitled to a grant of administration of the estate of the deceased. 3. A notice of the intention of [name of trustee company] to file an election was published in [name of newspaper], a daily newspaper circulating generally throughout Victoria on [date] and a copy of the notice is filed with this election and marked "A". 4. An inventory of the estate is filed with this election and marked "B". Dated: 20 . Signed for and on behalf of [name of trustee company]— __________________ Sch. -- 7 of 19 -- S.R. No. 36/2006 Trustee Companies Regulations 2006 7 FORM 2 Regulation 6(2) IN THE SUPREME COURT OF VICTORIA IN ITS PROBATE JURISDICTION IN THE MATTER OF the *Will/*Will and Estate of [name of deceased], deceased ELECTION TO ADMINISTER THE ESTATE OF A TESTATOR UNDER SECTION 11A(2) OF THE TRUSTEE COMPANIES ACT 1984 [Name of trustee company] elects under section 11A(2) of the Trustee Companies Act 1984 to administer the estate of the testator. PARTICULARS 1. The deceased late of [last residential address of deceased] in the State of Victoria, [last known occupation of deceased] died on [date] leaving by Will property in Victoria the gross value of which is estimated by [name of trustee company] at the time of this election not to exceed $50 000. 2. [Name of trustee company] is entitled to a grant of *probate/ *administration with the will of the deceased annexed. 3. Filed with this election and marked "A" is the last Will of the deceased. 4. A notice of the intention of [name of trustee company] to file an election was published in [name of newspaper], a daily newspaper circulating generally throughout Victoria on [date] and a copy of the notice is filed with this election and marked "B". 5. An inventory of the estate is filed with this election and marked "C". Dated: 20 . Signed for and on behalf of [name of trustee company]— __________________ Sch. -- 8 of 19 -- S.R. No. 36/2006 Trustee Companies Regulations 2006 8 FORM 3 Regulation 11 Statutory declaration under section 52(1) of the Trustee Companies Act 1984 Name of Company— (in this declaration called "the company") *I/We, , Managing Director/*Manager , Financial Officer , Director , Director declare that— 1. On (in this declaration called the "balance date") (note 2)— The authorised capital of the company was $ divided into shares of $ each. The issued capital was made up of shares of $ each paid to $ per share. The total amount of paid up capital was $ . The uncalled capital being $ per share and amounting to $ was made up as follows— $ per share amounting to $ which may be called up at the discretion of the company. $ per share amounting to $ which can only be called up on and for the purpose of the winding up of the company (reserve liability). Calls to the amount of $ per share amounting to $ had been made but remained unpaid and the shares had not been forfeited. The net tangible assets of the company (i.e. the amount calculated by deducting total liabilities from total tangible assets) amounted to $ . Sch. -- 9 of 19 -- S.R. No. 36/2006 Trustee Companies Regulations 2006 9 2. The following loans were obtained from financial institutions other than authorised deposit-taking institutions and insurance companies during the period of 3 months preceding the balance date— Name of Institution Amount of Loan $'000 Term of loan and Maturity Date Interest Rate Security (if applicable) 3. The following contingent liabilities existed at balance date. (Show the amounts where they can be quantified)— $'000 Guarantees of liabilities of related parties (note 1) Guarantees of liabilities of other persons Other contingent liabilities (note 3) TOTAL 4. The guarantees of liabilities of related parties (note 1) stated above were made up as follows— Name of Related Party Amount $'000 TOTAL 5. The nature and amount of the credit and standby facilities available to the company as at balance date, a summary of the restrictions affecting those facilities and the duration of each of those facilities were as follows— Nature of Facility Summary of Restrictions Duration Amount of Facility available to the company $'000 Amount of Facility unused at balance date $'000 TOTAL Sch. -- 10 of 19 -- S.R. No. 36/2006 Trustee Companies Regulations 2006 10 $'000 6. The value of trust estates in Victoria as at balance date was— (a) trust estates in Victoria of the company that consist of estates committed to the administration or management in Victoria of the company; (b) money received in Victoria by the company (not being an estate or part of an estate) for investment in a common fund; (c) other estates committed to the administration or management of the company; (d) other money received (not being an estate or part of an estate) for investment in a common fund. TOTAL 7. The reserve fund created under section 36(2) of the Trustee Companies Act 1984 amounted to $ at balance date and comprised the following assets— Description TOTAL $ 8. The balance sheet as at balance date (note 2) and the profit and loss account for the 3 months ended on that date were as follows— BALANCE SHEET AS AT . $'000 CURRENT ASSETS (note 1) Cash with authorised deposit-taking institutions and on hand Bills receivable— authorised deposit-taking institution accepted or endorsed (note 4) other (note 4) Investments in and loans to related parties (note 1) investments (notes 4 and 5) loans— secured (notes 4 and 6) unsecured (note 4) Sch. -- 11 of 19 -- S.R. No. 36/2006 Trustee Companies Regulations 2006 11 $'000 Other loans and deposits (note 7) secured (notes 4 and 6) unsecured (note 4) Government and semi-government securities (note 8) Shares, units, options, debentures and convertible notes: quoted on a prescribed financial market— market value $ (notes 1, 4 and 5) not quoted on a prescribed financial market (note 4) Interests in partnerships, trusts and unincorporated joint ventures (notes 4 and 9) Lease receivables (note 4) Property held for resale (note 4) Other current assets (notes 3 and 4) TOTAL CURRENT ASSETS NON-CURRENT ASSETS (note 1) Bills receivable: authorised deposit-taking institution accepted or endorsed (note 8) other (note 8) Investments in and loans to related parties (note 1) investments (notes 5 and 8) loans: secured (notes 6 and 8) unsecured (note 8) Other loans and deposits (note 7) secured (notes 6 and 8) unsecured (note 8) Government and semi-government securities (note 8) Shares, units, options, debentures and convertible notes: quoted on a prescribed financial market— market value $ (notes 1, 5 and 8) not quoted on a prescribed financial market (notes 5 and 8) Interests in partnerships, trusts and unincorporated joint ventures (notes 8 and 9) Lease receivables (note 8) Sch. -- 12 of 19 -- S.R. No. 36/2006 Trustee Companies Regulations 2006 12 $'000 Property held for resale (note 8) Property, plant and equipment (note 8) Intangible assets (notes 3 and 8) Other non-current assets (notes 3 and 8) TOTAL NON-CURRENT ASSETS TOTAL ASSETS CURRENT LIABILITIES (note 1) Authorised deposit-taking institution overdrafts and loans: secured (note 6) unsecured Loans from other financial institutions: secured (note 6) unsecured Bills payable and liabilities under promissory notes Subordinated loans from related parties (note 1) Clients' balances and deposits: secured (notes 3 and 6) unsecured Trade creditors and accrued expenses Lease payables Provisions: income tax dividends other Deferred income (notes 3 and 10) Other amounts payable: secured (notes 3 and 6) unsecured (note 3) TOTAL CURRENT LIABILITIES Sch. -- 13 of 19 -- S.R. No. 36/2006 Trustee Companies Regulations 2006 13 $'000 NON-CURRENT LIABILITIES (note 1) Authorised deposit-taking institution overdrafts and loans: secured (note 6) unsecured Loans from other financial institutions: secured (note 6) unsecured Bills payable and liabilities under promissory notes Subordinated loans from related parties (note 1) Clients' balances and deposits: secured (notes 3 and 6) unsecured Lease payables Provisions: income tax other Deferred income (notes 3 and 10) Other amounts payable: secured (notes 3 and 6) unsecured (note 3) TOTAL NON-CURRENT LIABILITIES TOTAL LIABILITIES NET ASSETS/SHAREHOLDERS' FUNDS (Total assets less total liabilities) LESS: INTANGIBLE ASSETS NET TANGIBLE ASSETS Sch. -- 14 of 19 -- S.R. No. 36/2006 Trustee Companies Regulations 2006 14 PROFIT AND LOSS ACCOUNT FOR THE 3 MONTH PERIOD ENDED (note 2) Operating profit (loss) Income Tax Operating Profit (loss) after income tax Profit (loss) on extraordinary items after income tax Net profit (loss) Please state details of— (i) material profits arising from the sale of non-current assets; and (ii) material increases arising from the revaluation of non-current assets; and (iii) abnormal items, accredited as revenue. Please state details of— (i) material losses arising from the sale of non-current assets; and (ii) material decreases arising from the revaluation of non-current assets; and (iii) abnormal items, charged as expense. At balance date the company had the following contingent liabilities (note 11): (i) name of potential creditor(s): (ii) estimate of amount of contingent liabilities: 9. In our opinion the balance sheet and the profit and loss account of the company have been drawn up so as to give a true and fair view of the state of affairs of the company as at balance date and the profit or loss of the company for the period ended on that date. 10. The classification of assets and liabilities and the valuation of assets in the balance sheet are based upon the company's intentions at balance date as to the use or disposal of those assets and the repayment of liabilities. Sch. -- 15 of 19 -- S.R. No. 36/2006 Trustee Companies Regulations 2006 15 11. In our opinion, at the date of this declaration, there are reasonable grounds to believe that the company will be able to pay its debts as and when they fall due. 12. During the period of 3 months preceding the balance date: There had been the following significant changes in the nature of the principal activities of the company (note 12): The following items, transactions or events of a material and unusual nature affected the results of the company's operations or its state of affairs (note 12): The provisions of the Trustee Companies Act 1984 in respect of investment of moneys held by the company on trust had been complied with. The company had complied with all other requirements of the Trustee Companies Act 1984. 13. The following matters or circumstances have arisen since the balance date and have significantly affected or may significantly affect: (a) the operations of the company; or (b) the results of those operations; or (c) the state of affairs of the company, in subsequent periods (note 12)— and we acknowledge that this declaration is true and correct, and it is made in the belief that a person making a false declaration is liable to the penalties of perjury. Name: Position: Signature: Declared at on before me (A person authorised under section 107A(1) of the Evidence Act 1958 to witness the signing of a statutory declaration) Sch. -- 16 of 19 -- S.R. No. 36/2006 Trustee Companies Regulations 2006 16 Name: Position: Signature: Declared at on before me (A person authorised under section 107A(1) of the Evidence Act 1958 to witness the signing of a statutory declaration) Name: Position: Signature: Declared at on before me (A person authorised under section 107A(1) of the Evidence Act 1958 to witness the signing of a statutory declaration) Name: Position: Signature: Declared at on before me (A person authorised under section 107A(1) of the Evidence Act 1958 to witness the signing of a statutory declaration) *delete if not applicable NOTES 1. In this Form— "current assets" means cash or other assets which, in the normal course of business, would be consumed or converted into cash within 12 months of balance date; "non-current assets" means assets which, in the normal course of business, would be consumed or converted into cash after 12 months of balance date; "current liabilities" means liabilities which, in the normal course of business, would be due and payable within 12 months of balance date; Sch. -- 17 of 19 -- S.R. No. 36/2006 Trustee Companies Regulations 2006 17 "non-current liabilities" means liabilities which, in the normal course of business, would be due and payable after 12 months of balance date; "prescribed financial market" means a prescribed financial market within the meaning of section 9 of the Corporations Act; "related party" in relation to the company, means— (a) a related corporation; or (b) the director, executive officer or secretary of the company; or (c) the director, executive officer or secretary of a related corporation controlled by the director, executive officer or secretary of the company; or (d) a person who is an associate, within the meaning of Division 2 of Part 1.2 of the Corporations Act, of the company. 2. Show the date of the last day of the 3 month period. 3. Provide details of major components if the total amount is material. 4. State at lower of cost and net realisable value. 5. Indicate types of investments by broad categories. 6. Indicate the nature and extent of security by broad categories. 7. Includes mortgages. 8. State at cost or valuation less amounts written off or provided for depreciation or permanent diminution in value. 9. Indicate the nature and extent of the interests by broad categories. 10. Unearned income must not be included in an estimate of the gross amount of a class of debts unless the amount of unearned income so included is shown as a deduction from the estimate of the gross amount of the class of debts concerned. 11. Briefly explain how each contingent liability arose. Indicate the likelihood of each contingent liability being realised. List any contingent liability which has ceased to exist since the last quarterly report. Briefly explain why. 12. If no change insert "nil". ═══════════════ Sch. -- 18 of 19 -- S.R. No. 36/2006 Trustee Companies Regulations 2006 18 ENDNOTES 1 Reg. 4: S.R. No. 38/1995 as amended by S.R. No. 62/2001. Endnotes -- 19 of 19 --