Victorian Consolidated Legislation

Administration and Probate Act 1958 - SECT 38

Trust for sale on intestacy

38. Trust for sale on intestacy



(1) On the death of a person intestate as to any real or personal estate, such
estate shall be held by his personal representatives-

   (a)  as to the real estate (including chattels real) upon trust to sell the
        same; and

   (b)  as to the personal estate upon trust to call in sell and convert into
        money such part thereof as may not consist of money-

with power to postpone such sale and conversion for such a period as the
personal representatives, without being liable to account, think proper, and
so that any revisionary interest shall not be sold until it falls into
possession, unless the personal representatives see special reason for sale,
and so also that, unless required for purposes of administration owing to want
of other assets, personal chattels shall not be sold except for special
reason.

(2) Out of the net money to arise from the sale and conversion of such real
and personal estate (after payment of costs), and out of the ready money of
the deceased (so far as not disposed of by his will, if any), the personal
representative shall pay all such funeral testamentary and administration
expenses debts and other liabilities as are properly payable thereout having
regard to the rules of administration contained in this Division and out of
the residue of the said money the personal representative shall set aside a
fund sufficient to provide for any pecuniary legacies bequeathed by the will
(if any) of the deceased.

(3) Pending the distribution of the whole or any part of the estate of the
deceased, the personal representatives may invest the residue of the said
money, or so much thereof as may not have been distributed, in any investments
for the time being authorized by statute for the investment of trust money,
with power, at the discretion of the personal representatives, to change such
investments for others of a like nature.

(4) The residue of the said money and any investments for the time being
representing the same, including (but without prejudice to the trust for sale)
any part of the estate of the deceased which may be retained unsold and is not
required for the administration purposes aforesaid, is in Division six of this
Part referred to as the "residuary estate" of an intestate.





(5) The income, including net rents and profits of real estate (including
chattels real) after payment of rates taxes rent costs of insurance repairs
and other outgoings properly attributable to income, of so much of the estate
of the deceased as is not disposed of by his will (if any) or is not required
for the administration purposes aforesaid, may, however such estate is
invested, as from the death of the deceased, be treated and applied as income.

(6) Nothing in this section shall affect the rights of any creditor of the
deceased or the rights of the Crown in respect of duties.

(7) Where the deceased leaves a will, this section has effect subject to the
provisions contained in the will.

(8) In this section real and personal estate means every beneficial interest
(including rights of entry and reverter) of the intestate in real and personal
estate which (otherwise than in right of a power of appointment or of the
testamentary power conferred by Statute to dispose of entailed interests) he
could if of full age and capacity have disposed of by his will.