Clause 419

In this section, unless the context otherwise requires, “creditor” means one or more creditors qualified to make a bankruptcy application under Part 16.

The Official Assignee or any creditor of a deceased debtor whose debt would have been sufficient to support a bankruptcy application against the debtor had the debtor been alive, may make to the Court an application for an order for the administration of the estate of the deceased debtor according to Parts 16 to 21.

Every application under this section is to be in the same form as a creditor’s bankruptcy application under section 307, with such variations as the case may require, except that in the case of an application by the Official Assignee, it is not necessary to allege or prove that any debt is owing to the applicant.

Upon the prescribed notice being given to the legal representative, if any, of the deceased debtor, the Court may, in the prescribed manner, upon proof of the applicant’s debt, unless the Court is satisfied that there is a reasonable probability that the estate will be sufficient for the payment of the debts owing by the deceased debtor, make an order for the administration in bankruptcy of the deceased debtor’s estate, or may, upon cause being shown, dismiss the application with or without costs.

An application for administration under this section must not be made to the Court after proceedings have been commenced for the administration of the deceased debtor’s estate, except that the Court may, in that case, on the application of any creditor and on proof that the estate is insufficient to pay its debts in the prescribed manner, make an order for the administration of the estate of the deceased debtor in bankruptcy, and the like consequences ensue as under an administration order made on the application of a creditor.

An administration order under this section must not be made until the expiration of 2 months after the date of the grant of probate or letters of administration, unless with the concurrence of the legal representative of the deceased debtor.

Upon an administration order being made under this section, the property of the debtor vests in the Official Assignee as trustee of the property without any further conveyance, transfer or assignment, and the Official Assignee must forthwith proceed to realise and distribute the same in accordance with Parts 16 to 21.

Sections 334, 335 and 336 so far as they relate to persons other than the debtor, and, with the modifications under this section, all the provisions of Part 17, so far as the same are applicable, apply to the case of an administration order under this section, and for the purposes of such application, unless the context otherwise requires, every reference to a bankrupt is to be read as a reference to the legal representative of the deceased debtor.

Sections 361, 367 and 368 apply in the case of an administration order under this section as if the administration order were a bankruptcy order.

In the administration of the property of the deceased debtor under an administration order, the Official Assignee must have regard to any claims by the legal representative of the deceased debtor to payment of the proper funeral and testamentary expenses incurred by the legal representative in and about the debtor’s estate, and such claims are deemed to be preferential debts under the administration order and are payable in full out of the debtor’s estate in priority to all other debts.

If on the administration of a deceased debtor’s estate any surplus remains in the hands of the Official Assignee after payment in full of all the debts due from the debtor, together with the costs of the administration and interest as provided by Parts 16 to 21 in the case of a bankruptcy, the surplus is, subject to section 391(2), to be paid over to the legal representative of the deceased debtor’s estate or dealt with in such other manner as is prescribed.

Upon notice being given to the legal representative of a deceased debtor of the making by a creditor of an application under this section, and in the event of an administration order being made on the application, no payment or transfer of property made by the legal representative after the giving of the notice operates as a discharge to the legal representative as between the legal representative and the Official Assignee.

Subject to this section, nothing in this section invalidates any payment made or act or thing done in good faith by the legal representative before the date of the administration order.