Glossary

Administrator: This is the person who administers an intestate estate or an estate which has no executor.

Administration: The management of a deceased estate by a person duly authorised to act as executor or administrator depending upon whether the appointment was made

Beneficiary: Beneficiaries are those people or organisations named in a will who will receive a gift under the will. Beneficiaries may receive gifts of money personal or real property (land).

Bequest: A gift of personal property by will.

Bona vacantia: is the Crown’s statutory right to the property of an intestate

Codicil: An extra section added on to a will at a date after the original will has been signed. It will also need to be signed and witnessed in the same way as the original will was.

Conditions precedent: where an event must occur before a beneficiary can receive a gift

Conditions subsequent: where a beneficiary loses a gift they have already received if an event later occurs

Devise: A gift of land by will. The person who inherits it is called the ‘devisee’.
Estate: The estate is the testator’s property, both real (land) and personal (things other than land).
Executor: An executor is the person appointed by the testator to carry out the terms of the will. The duties of an executor include: obtaining a grant of probate; collecting in the estate assets; paying debts; and distributing the assets to the beneficiaries named in the will.

Executor’s Powers: Executors have certain powers by law but a will may give them more.

Guardianship: The control or management of a person or property, or both, of another who is incapable of acting for himself/herself. This includes persons appointed to be legally responsible to care for children under the age of 18 years.

Intestate: This is a person who has died without leaving a will.

Issue: The lineal descendants of a person, children being the first generation, grandchildren being the next, and so on.

Joint tenancy: Ownership of property in which when one party dies their share of the property automatically passes to the other party (as opposed to tenancy in common).

Legacy: a gift of personal property by will. The person who receives it is the ‘legatee’.

Letters of administration: When a person dies intestate (without a will) the court will usually grant letters of administration to the person they appoint to take on the role of administrator. The letters of administration give that person the power to act over the property in the estate in the same way that probate gives the executor the power to act. If a will does not appoint an executor, the court may also give letters of administration to someone so that they can carry out that role in relation to the estate of the testator.

Personal property/estate: This has a technical legal meaning. It means all forms of property other than real property; that is, all forms of property other than land and interests in land (except that leaseholds are classified as personal property). Examples of personal property include: money, shares, bank accounts, cars, boats, domestic pets, furniture, household items, personal effects including clothing, jewellery etc.

Probate: A grant of probate is given to an executor of the will when the Court is satisfied that the will is valid. The grant gives the executor the power to deal with the estate. In New South Wales this power is then dated back to the date of death of the testator.

Real property/estate: Land and interests in land.
Residue: The rest (‘residue’ or ‘remainder’ is the technical legal word) of the estate is the gift of that which is left after all other gifts have been given.
Specific gifts: A gift within a will of a specific item to a named beneficiary, beneficiaries, or both such as an antique clock or a piece of jewellery.

Tenancy in common: Joint ownership of property. The owners have specific shares so that if one dies their share may pass as part of their estate to a beneficiary (as opposed to joint tenancy).

Testamentary capacity: The testator must have testamentary capacity for the will to be valid. This is the ability to understand the following: the nature and effect of a will; the nature and extent of your assets; the people who might have a claim on your assets; and in relation to such people there must be no disorder of mind that would influence the person to omit such people from your will.

Testamentary trust: This is a trust set up in a will as opposed to an ‘inter vivos’ trust, which is one that is established during a person’s lifetime.

Testate: Where a person dies leaving a will they are said to have died testate.

Testator (Male) /Testatrix (Female): This is the person who makes the will.

Trustee: It is usual for a testator to appoint both an executor and trustee in their will. Often the executor and trustee is the same person, although a testator may appoint different people to take on these roles. A trustee’s role is to administer any continuing trusts. For example, the will may set up a testamentary trust and it is the role of the trustee to look after this trust. An example of a trust established by will is where a testator provides that a gift is not to be immediately transferred to the beneficiary but held for their benefit for a specified period of years. The trustee’s role in such a trust is to manage the property for the benefit of the beneficiary whose interests are paramount.

Will: A will, sometimes called a ‘testament’, is a legal document in which a person expresses their wish as to what will happen to their property when they die. A will can appoint an executor, or a guardian and dispose of property. A will only comes into effect upon the death of the person who made it. Anyone over the age of 18 with testamentary capacity can make a will.

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