Some common words explained

Wills & Deceased Estates

Set out below are the meanings of some of the common words used in the area of deceased estates. If you have any queries about these words or any others that might be concerning you feel free to contact us to discuss them.

 

Will

A Will is a document that sets out how the Will maker wants his or her property to be dealt with after the Will maker has died.

Intestacy

The name given to describe when a person has died without a Will.

Executor

The person appointed in a Will to handle the legal affairs and tasks in administering the estate.

Administrator

The person who administers an estate when there was no one appointed to that task by a Will of the deceased.

Beneficiary

A person who is to receive an asset or assets from the estate of the deceased person, whether by being nominated in the Will to receive those assets or, where there is no Will, by being entitled under the intestate scheme of distribution.

Intestate scheme of distribution

Where the deceased person did not have a Will, there is legislation that sets out a formula to determine who is entitled to share in the net assets of the estate. That formula is known as the intestate scheme of distribution. In broad terms it is often the nearest next of kin who share in the estate, although a domestic partner may also have some entitlements.

Grant of Representation

The name given to recognition by the Supreme Court of Victoria that a person be formally recognised (in the case of an executor appointed under a Will) or appointed (in the case where there was no Will that appointed an executor) as the legal personal representative of the estate. The grant comes in one of two forms, Probate or Letters of Administration.

Probate

Probate is the name given to obtaining the recognition of the Supreme Court of Victoria that a Will is valid, that it is the last known Will of the deceased person and that the executor named in the Will is the person to act as the legal personal representative of the estate. It is referred to as a grant of Probate, or in short simply by the word Probate. Probate is often confused with Probate Duty, which was a tax that was abolished in the early 1980’s and no longer applies.

Letters of Administration

The name given to the appointment by the Supreme Court of Victoria of a person to act as the legal personal representative of the estate when there was no Will that appointed an executor. There are a number of forms of this type of grant. Where there was no Will the grant is known simply as a grant of Letters of Administration. Where there was a Will but it didn’t nominate an executor or the person it nominated has predeceased or is for some other reason unable or unwilling to act, the grant is known as a grant of Letters of Administration with the Will annexed.

Parchment

The actual Probate or Letters of Administration document bearing the seal of the Court

Revoking a Will

The description given when a Will is cancelled. A cancelled Will is said to be revoked.

Caveat

A latin word meaning “beware” and used in deceased estates to refer to a document that can be filed at the office of the Registrar of Probates to temporarily halt the processing of an application for a grant of Probate or Letters of Administration.

Registrar of Probates

A grant of representation for an estate can only be made by the Supreme Court of Victoria. In fact most applications for a grant are uncontentious. The office of the Registrar of Probates exists to handle those applications. The Registrar of Probates has power to make a grant of representation when of the opinion that the Court would have done so.

Testator / Testatrix

An alternative description to the word Willmaker. Used as a formal way of describing a person who has made a Will. These are respectively the male and female forms of the word.

Testamentary Capacity

The description given to the legal capacity that a person needs in order to make a valid Will. In essence it refers to the requisite mental facilities needed and the presence or absence of any legal disability.

Part IV claim / Testator’s Family Maintenance claim

Name given to an area of law that enables a person to seek to obtain an order from the Supreme Court of Victoria that the provisions of a Will or, where there was no Will, the operation of the Intestate Scheme of Distribution, be altered to make proper provision for that person.

Commission

A payment that a legal personal representative might seek to be paid for his or her pains and troubles in acting in that capacity. Legislation allows up to 5% commission.

Testamentary Guardian

It is possible in a Will to nominate a person to act as the legal guardian of the Will maker’s children in the place of the Will maker. The guardian makes lifestyle decisions including decisions such as where the children live, what schools they go to and what activities they can undertake. This role is different to that of the executor, who is responsible for the management of the money and assets of the estate. The same person can be appointed to both roles.

Family Trust

A Family Trust is an arrangement in which a trustee is appointed to hold assets in accordance with the Rules of the Trust. The trustee might be an individual or might be a company. Often the person who set up the trust and contributes the assets to the arrangement is the person appointed as the trustee or the person in control of the company to act as trustee. The Rules of the Trust set out who has a right to be considered when the trustee makes decisions about who is to take a benefit in the trust from time to time. These people are called “trust beneficiaries”. The trustee has an absolute discretion to make decisions about who is to be allowed to use the assets held or who is entitled to the income earned by the assets. The trustee can also decide whether to make distributions of the assets themselves amongst that class of trust beneficiaries.

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