BANKRUPTCY ACT 1966

PART XI - ADMINISTRATION OF ESTATES OF DECEASED PERSONS IN BANKRUPTCY  

SECTION 249   VESTING OF PROPERTY ON MAKING OF ORDER  

249(1)   [Vesting of property]  

Subject to this Act, where an order is made for the administration of the estate of a deceased person under this Part:


(a) the divisible property of the estate, not being after-acquired property, vests forthwith in the Official Trustee or, if when the order is made, a registered trustee is trustee of the estate of the deceased person under this Act, in that registered trustee; and


(b) after-acquired property of the estate vests, as soon as it is acquired by, or devolves on, the estate, in the Official Trustee or, if a registered trustee is trustee of the estate of the deceased person under this Act, in that registered trustee;

and is divisible amongst the creditors of the deceased person and of his or her estate in accordance with this Act.

249(2)   [Transmission]  

Where a law of the Commonwealth or of a State or Territory of the Commonwealth requires the transmission of property to be registered and enables the trustee of the estate of a deceased person under this Act to be registered as the owner of any such property that is part of the divisible property of the estate, that property, notwithstanding that it vests in equity in the trustee by virtue of this section, does not so vest at law until the requirements of that law have been complied with.

249(3)   [Limitations on creditor ' s rights]  

Except as provided by this Act, after an order has been made for the administration of the estate of a deceased person under this Part, it is not competent for a creditor:


(a) to enforce any remedy against the estate in respect of a debt provable in the administration; or


(b) except with the leave of the Court and on such terms as the Court thinks fit, to commence any legal proceedings in respect of such a debt or take any fresh step in such a proceeding.

249(4)   [Distress for rent etc]  

After an order has been made for the administration of the estate of a deceased person under this Part, distress for rent shall not be levied or proceeded with against the divisible property of the estate, whether or not the deceased person was a tenant of the landlord by whom the distress is sought to be levied.

249(4A)   [Maintenance agreement or order]  

Nothing in this section shall be taken to prevent a creditor from enforcing any remedy against the estate of a deceased person in relation to which the Court has made an order for administration under this Part, or against any property of such an estate that is not part of the divisible property of the estate, in respect of any liability of the estate under a maintenance agreement or maintenance order (whether entered into or made, as the case may be, before or after the commencement of this subsection).

249(5)   [Secured creditor]  

Nothing in this section affects the right of a secured creditor to realize or otherwise deal with his or her security.

249(6)   [Administration commenced before the death]  

For the purposes of this section, where the administration of the estate of a deceased person under this Part is, by virtue of section 247A , to be deemed to have commenced before the death of the deceased person, the divisible property of the estate comprises:


(a) property that formed part of the estate upon the death of the deceased person other than:


(i) property that, if the deceased person had not died and a sequestration order had been made against him or her immediately before his or her death, would not have been divisible amongst his or her creditors under Part VI ; or

(ii) so much of:

(A) the proceeds of a policy of life assurance or endowment assurance; or

(B) a payment from a regulated superannuation fund (within the meaning of the Superannuation Industry (Supervision) Act 1993 ) or an approved deposit fund (within the meaning of that Act); or

(BAA) a payment from an exempt public sector superannuation scheme (within the meaning of that Act); or

(BA) a payment from an RSA;
as would not have been divisible among the creditors of the deceased person under Part VI if:

(C) the deceased person had not died; and

(D) a sequestration order had been made against the deceased person immediately before his or her death; and

(E) the amount concerned had been paid immediately before his or her death;


(b) property that was or is acquired by, or devolved or devolves on, the estate after the death of the deceased person and before an order releasing the estate from administration under this Part is made, not being property that, if the deceased person had not died and a sequestration order had been made against him or her immediately before his or her death, would not have been divisible amongst his or her creditors under Part VI ;


(c) the capacity to exercise, and to take proceedings for exercising, all such powers in, over or in respect of property as might have been exercised by the legal personal representative of the deceased person for the benefit of the estate at any time before an order releasing the estate from administration under this Part is made;


(d) property that forms part of the divisible property of the estate by virtue of section 251 and any amount for which a person is liable to account to the trustee of the estate under subsection 251(2) ;


(e) if, immediately before the death of the deceased person, any property was owned by the deceased person and another person or other persons as joint tenants - an amount equal to the value of the improvements (if any) made to that property wholly or principally by or at the expense of the deceased person after, or not earlier than 2 years before, the commencement of administration of his or her estate under this Part;


(f) property (other than property that formed part of the estate of the deceased person upon his or her death) that belonged to, or was vested in, the deceased person at the commencement of administration of his or her estate under this Part or was acquired by, or devolved on, the deceased person after the commencement of administration of his or her estate under this Part and before his or her death, not being property that, if he or she had not died and a sequestration order had been made against him or her at the commencement of administration of his or her estate under this Part, would not have been divisible amongst his or her creditors under Part VI; and


(g) the capacity to exercise, and take proceedings for exercising, all such powers in, over or in respect of property as might have been exercised by the deceased person for his or her own benefit at the commencement of administration of his or her estate under this Part, or at any time after commencement of administration of his or her estate under this Part and before his or her death.

249(7)   [Administration commenced at time of death]  

For the purposes of this section, where the administration of the estate of a deceased person is under this Part, by virtue of section 247A , to be deemed to have commenced at the time of his or her death, the divisible property of the estate comprises:


(a) property that formed part of the estate upon the death of the deceased person other than:


(i) property that, if the deceased person had not died and a sequestration order had been made against him or her immediately before his or her death, would not have been divisible amongst his or her creditors under Part VI ; or

(ii) so much of:

(A) the proceeds of a policy of life assurance or endowment assurance; or

(B) a payment from a regulated superannuation fund (within the meaning of the Superannuation Industry (Supervision) Act 1993 ) or an approved deposit fund (within the meaning of that Act); or

(BAA) a payment from an exempt public sector superannuation scheme (within the meaning of that Act); or

(BA) a payment from an RSA;
as would not have been divisible among the creditors of the deceased person under Part VI if:

(C) the deceased person had not died; and

(D) a sequestration order had been made against the deceased person immediately before his or her death; and

(E) the amount concerned had been paid immediately before his or her death;


(b) property that was or is acquired by, or devolved or devolves on, the estate after the death of the deceased person and before an order releasing the estate from administration under this Part is made, not being property that, if the deceased person had not died and a sequestration order had been made against him or her immediately before his or her death, would not have been divisible amongst his or her creditors under Part VI ;


(c) the capacity to exercise, and to take proceedings for exercising, all such powers in, over or in respect of property as might have been exercised by the legal personal representative of the deceased person for the benefit of the estate at any time before an order releasing the estate from administration under this Part is made;


(d) property that forms part of the divisible property of the estate by virtue of section 251 and any amount for which a person is liable to account to the trustee of the estate under subsection 251(2) ; and


(e) if, immediately before the death of the deceased person, any property was owned by the deceased person and another person or other persons as joint tenants - an amount equal to the value of the improvements (if any) made to that property wholly or principally by or at the expense of the deceased person after, or not earlier than 2 years before, the commencement of administration of his or her estate under this Part.

249(8)   [Administration commenced after death]  

For the purposes of this section, where the administration of the estate of a deceased person under this Part is, by virtue of section 247A , to be deemed to have commenced after the death of the deceased person, the divisible property of the estate comprises:


(a) property that formed part of the estate at the commencement of administration of the estate under this Part other than:


(i) property that, if the deceased person had not died and a sequestration order had been made against him or her at that time, would not have been divisible amongst his or her creditors under Part VI ; or

(ii) so much of:

(A) the proceeds of a policy of life assurance or endowment assurance; or

(B) a payment from a regulated superannuation fund (within the meaning of the Superannuation Industry (Supervision) Act 1993 ) or an approved deposit fund (within the meaning of that Act); or

(BAA) a payment from an exempt public sector superannuation scheme (within the meaning of that Act); or

(BA) a payment from an RSA;
as would not have been divisible among the creditors of the deceased person under Part VI if:

(C) the deceased person had not died; and

(D) a sequestration order had been made against the deceased person at that time; and

(E) the amount concerned had been paid at that time;


(b) property that was or is acquired by, or devolved or devolves on, the estate after the commencement of administration under this Part and before an order releasing the estate from administration under this Part is made, not being property that, if the deceased person had not died and a sequestration order had been made against him or her at the commencement of administration of his or her estate under this Part, would not have been divisible amongst his or her creditors under Part VI ;


(c) the capacity to exercise, and to take proceedings for exercising, all such powers in, over or in respect of property as might have been exercised by the legal personal representative of the deceased person for the benefit of the estate at the commencement of administration under this Part or at any time after that time and before an order releasing the estate from administration under this Part is made; and


(d) property that forms part of the divisible property of the estate by virtue of section 251 and any amount for which a person is liable to account to the trustee of the estate under subsection 251(2) .

249(9)   [Value of improvements to property]  

The value of any improvements made to property owned by a deceased person in respect of whose estate an order is made for administration under this Part and another person or other persons as joint tenants shall, for the purposes of paragraph (6)(e) or (7)(e), be determined as at the date of the death of the deceased person.

249(10)   [Interpretation]  

In this section:

after-acquired property
, in relation to an estate, means property that is acquired by, or devolves on, the estate of the deceased person on or after the day on which the order for the administration of the estate under this Part is made, being property that is part of the divisible property of the estate.

commencement of administration
, in relation to the administration of the estate of a deceased person under this Part, means the time at which the administration of the estate under this Part is, by virtue of section 247A , to be deemed to have commenced.




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