What Is NSW Trustee and Guardian

NSW Trustee and Guardian was established on 1 July 2009 under the NSW Trustee and Guardian Act 2009 (NSW), merging the former Public Trustee NSW and the Office of the Protective Commissioner into a single statutory agency.

The agency has two broad functions. It acts as an independent executor, administrator, trustee, or attorney for estates and trusts, and it provides direct financial management for people who cannot manage their own affairs because of a decision-making disability.

According to its own government profile page, the agency also drafts wills, powers of attorney, and enduring guardianship documents, and offers safekeeping for these documents once signed.

The Roles NSW Trustee and Guardian Can Play

It is not a single fixed role. Depending on the circumstances, it can be appointed in several different capacities, each governed by a different part of the Act.

Executor Under a Will

A person can name NSW Trustee and Guardian as executor in their will, the same way they would name a family member or solicitor. Once appointed, it carries out the same executor duties as any private executor, including applying for probate and distributing the estate.

Administrator on Intestacy or Small Estates

Where someone dies without a will, or where a named executor cannot or will not act, it can be appointed administrator. Under section 26 of the NSW Trustee and Guardian Act 2009 (NSW), it may file an election to administer a small estate directly with the Supreme Court registry, rather than applying for a standard grant, provided no one else has already obtained probate or administration.

Financial Manager for a Person Who Lacks Capacity

Separately from deceased estates, the agency can be appointed to manage the financial affairs of a living person who cannot make their own decisions, such as someone with advanced dementia or a serious brain injury.

When a Court or Tribunal Appoints NSW Trustee and Guardian

Appointment is not automatic. It generally happens through one of a small number of legal pathways, and understanding which one applies helps families know what to expect next. In each case, the agency effectively acts as an executor of last resort rather than the family’s first choice.

• The deceased named NSW Trustee and Guardian in their will, usually because they had no suitable family member or wanted an independent, impartial executor
• No one is willing or able to act as executor, and the estate is small enough for it to file an election under section 26 instead of a full probate application
• A family provision claim or dispute makes independence useful, particularly in blended families where an independent administrator can reduce conflict between the parties
• The Supreme Court orders it to manage a living person’s estate, under section 41 of the NSW Trustee and Guardian Act 2009 (NSW), where the Court is satisfied the person cannot manage their own affairs

More: What Happens If the Original Will Cannot Be Found in NSW?

How NCAT Appoints a Financial Manager

Financial management orders for living people follow a different pathway from deceased estate administration, and it helps to understand how that process works before assuming the agency will automatically be involved.

Financial management applications are heard by the Guardianship Division of the NSW Civil and Administrative Tribunal. According to NCAT’s own guidance on financial management, the Tribunal can appoint either a private financial manager, such as a family member or friend, or NSW Trustee and Guardian.

It is typically appointed where no suitable private person is available, where family members disagree about who should act, or where the person’s financial affairs are complex enough to need professional management. Most financial management orders operate indefinitely once made, though NCAT can make a time-limited interim order first if it needs more information.

Private financial managers do not act entirely independently either. The agency provides authorisation, supervision, and direction to every private financial manager appointed in NSW, so its oversight role extends well beyond the estates it directly administers.

How NSW Trustee and Guardian’s Fees Work

Cost is usually the first practical question families ask, and the fee structure is different from how a private solicitor charges.

NSW Trustee and Guardian’s fees for administering a deceased estate are prescribed and regulated under the NSW Trustee and Guardian Act 2009 (NSW) and the NSW Trustee and Guardian Regulation 2017 (NSW). According to its published fee information, fees are calculated as a percentage of the value of assets solely owned by the deceased and are deducted from the estate once assets are collected, sold, or transferred.

Jointly owned assets, such as a house or bank account held with a surviving spouse, generally attract no fee beyond a minimal charge to register the transfer. There are no up-front fees. The executor fee is a one-off charge and does not cover disbursements such as valuations or court filing fees, which are billed separately.

NSW Trustee and Guardian Compared to a Private Solicitor

Families often assume it is either always cheaper or always more expensive than a private solicitor, but the honest answer depends on the estate.

Some practical differences worth weighing up:

• Choice of contact: with a private solicitor, the same person usually manages the file from start to finish. With NSW Trustee and Guardian, the estate may be handled by different staff members within the agency over time
• Independence: it has no personal or family connection to the deceased, which can reduce conflict in blended families or where relationships between beneficiaries are strained
• Fee structure: its fees are prescribed by regulation and scale with asset value. A private solicitor’s fees for the probate application itself are also regulated, but ongoing administration work is generally billed at an hourly rate
• Flexibility: a private solicitor engaged directly by an executor can usually be instructed on specific tasks only, whereas the agency typically administers the whole estate once appointed

Executors who are unsure whether to engage NSW Trustee and Guardian, a private solicitor, or administer the estate themselves should get advice before committing, since the choice affects both cost and how much control the family retains over the process.

More: Executor’s First 30 Days Checklist: What to Do When Someone Dies in NSW

Other Services: Wills, WillSafe, and Deceased Will Enquiries

Its role extends beyond acting as executor or financial manager. It is one of the largest will-drafting services in NSW, and its safekeeping and search functions are relevant to almost every estate, not just the ones it directly administers.

WillSafe is its free document storage service for wills, powers of attorney, and enduring guardianship appointments, whether or not the agency prepared the document. 

If a family cannot locate a deceased relative’s will, Service NSW’s deceased will enquiry process allows eligible people, including beneficiaries and those who would inherit on intestacy, to search NSW Trustee and Guardian’s records for a stored copy.

This search is often one of the first practical steps for an executor or family member trying to establish whether a will exists at all.

When to Use NSW Trustee and Guardian and When to Get Independent Advice

It suits people who have no one appropriate to appoint as executor, who want a genuinely independent administrator, or whose estate is modest enough that the standard fee structure makes sense.

Get independent legal advice before finalising this choice where the estate is large or complex, where a family provision claim is likely, or where the family wants more personal continuity than a government agency can offer. Proper succession planning while you are still able to make these decisions is the simplest way to avoid the default outcome entirely.

How Empower Probate Lawyers Can Help

Deciding between NSW Trustee and Guardian, a private solicitor, and self-administration is a genuine strategic choice, not just a paperwork exercise. Getting it wrong can mean unnecessary cost, unnecessary delay, or a loss of control over a sensitive family situation.

We advise executors and families on letters of administration and grant of probate applications across NSW, including estates where NSW Trustee and Guardian has already been appointed or is being considered. 

Call 1300 481 161 for an initial consultation. Specialist advice. Free initial consultation. Deferred fee arrangements are available in eligible cases.

Frequently Asked Questions

Is NSW Trustee and Guardian a government agency or a private company?

It is a NSW Government statutory agency, established under the NSW Trustee and Guardian Act 2009 (NSW). It is not a law firm or private trustee company.

Can I choose NSW Trustee and Guardian as my executor instead of a family member?

Yes. You can name NSW Trustee and Guardian as executor in your will, and it will carry out the same duties as any other executor once appointed, including applying for probate.

Does NSW Trustee and Guardian always administer estates where there is no will?

Not always. It can file an election to administer a small estate directly, but for larger or more complex intestate estates, another eligible person, such as a next of kin, may still apply for letters of administration instead.

How are NSW Trustee and Guardian’s fees calculated?

Fees are prescribed by regulation and generally calculated as a percentage of the value of assets solely owned by the deceased. Jointly owned assets typically attract no fee beyond a minimal transfer charge.

Who decides if NSW Trustee and Guardian manages a living person’s finances?

The NSW Civil and Administrative Tribunal’s Guardianship Division makes financial management orders and can appoint either a private financial manager or NSW Trustee and Guardian, depending on the person’s circumstances and whether a suitable private person is available.

Can I search NSW Trustee and Guardian’s records to find a deceased relative’s will?

Yes, through the deceased will enquiry process managed by Service NSW. Eligible people, including beneficiaries, certain relatives, and those who would inherit on intestacy, can request a search of NSW Trustee and Guardian’s will records.