Glossary of Common Probate Words and Terms
- Abatement
- A common law doctrine when assets of the deceased are less than the debts to the creditors and those debts must be paid first
- Administration
- The process by which the assets of deceased person is gathered in and dispersed to the rightful heirs where there is no Will, or to the beneficiaries if there is a Trust or Will
- Administrator
- A person appointed by law to settle the affairs of someone who dies without a Will
- Affidavit
- A voluntary statement in writing, sworn before a nominated official, such as notary public, solicitor, or Justice of the Peace
- Age of majority
- An age at which a person is granted legal rights (e.g. ability to sue) and legal responsibilities (e.g. liability under a contract) as if an adult. In most States and Territories, this age is 18 years
- Assignment
- The transfer of rights held by one party to another party
- Attest | Attestation
- To attest a Will is to witness its execution by seeing the testator sign or acknowledge the Will
- Beneficiary
- A person or organisation receiving a gift from a Will
- Bestow
- A verb which means to give; to grant or give something to another person or entity
- Bequest
- A gift in a Will left to a specific person or organisation
- Bequeath
- To leave a bequest in a Will
- Breach of Trust
- Failure of a trustee to fulfil required duties; includes doing things illegally, negligently or forgetfully
- Capital Gains Tax
- A tax that is assessed on the difference between the cost basis (the original amount of purchase) of an asset and its fair market value
- Codicil
- A supplement to a Will containing an addition or change to a Will
- Declaration of Trust
- A Deed confirming on what terms joint owners own property
- Dependant
- A person who relies upon another for financial support
- Deponent
- An executor swearing an affidavit “disposes” to the facts. Therefore, the executor, the applicant and the deponent are one and the same in probate applications
- Divorce
- Dissolution of Marriage (which may result in a need to change a Will)
- Estate
- The property and possessions of a deceased person
- Estate Planning
- The legal process by which Estates and Wills are structured to facilitate easy distribution and finalisation of one’s property and wishes at death
- Execution
- The act of signing and dating a Will and having it witnessed
- Executor
- A person named in a Will to carry out the specific directions contained in a Will
- Family Provision
- Financial provision made by way of Court Order for the proper maintenance of and support for a deceased person’s family or dependants from the deceased’s Estate
- Fiduciary
- A person in a position of trust with respect to another's property; a general term used to refer to Executor, Administrator, or Trustee
- Fiduciary Duty
- An obligation to act in the best interest of another party, e.g. a company's board member has a fiduciary duty to the shareholders, a trustee has a fiduciary duty to the trust's beneficiaries, and a solicitor has a fiduciary duty to a client
- Grant of Probate
- A Court Order which confirms that a Will is valid and that the Executors are entitled to deal with the deceased’s assets
- Grant of Representation
- A Grant of Probate or Letters of Administration
- Guardian
- A person you name in your Will as the person to look after your children (if they are still minors) or any mentally impaired dependants, if they do not already have a guardian. You should obtain the consent of your chosen guardian first, before naming him or her in your Will
- Heir
- A person who inherits or is entitled by law or by the terms of a Will, to inherit the Estate of another person
- Holographic Will
- A Will written entirely by the testator with his own hand and not witnessed (attested)
- Inheritance
- Property passed on by a deceased person in accordance with inheritance laws
- Intestate | Intestacy
- Dying without leaving a Will: "Partial Intestate" - to die with only part of an Estate covered by a Will
- Intestate Succession
- The order of who inherits the property when someone dies without a Will
- Joint Executors
- Multiple parties named to administer an Estate sharing the fiduciary duty to ensure the Estate is handled properly
- Joint Owners
- For example, property such as real estate, furniture, shares or money in the bank, jointly owned with another person or persons in one of two ways - either as a joint tenant or as a tenant in common
- Joint Tenants | Tenancy
- Two or more persons specifically named in a document as joint tenants. Upon the death of a joint tenant, the surviving joint tenant or tenants automatically receive the deceased tenant's interest by the right of survivorship
- Legacy
- A gift of property left in a Will
- Legatee
- A person named in a Will
- Letters of Administration
- A Court Order confirming who is entitled to deal with a deceased’s property if there is no valid Will
- Living Will
- A written document that states a person's wishes regarding life-support or other medical treatment in certain circumstances, usually when death is imminent
- Maintenance
- In a divorce or separation, the money paid by one spouse to the other in order to fulfil the financial obligation that comes with marriage
- Minor
- A person who is not yet 18 years old
- Movable and immovable property
- The distinction can be complex and if there is any doubt you should consult a lawyer. However, "immovable" property includes land and buildings, whilst everything else can usually be regarded as movable
- Personal Representative
- A general term referring to a person or persons who perform acts associated with the administration of a deceased estate – either as an executor or administrator
- Pledge
- A promised gift
- Power of Attorney
- An express written authority in proper form signed and witnessed according to law, by which one person appoints another to act on his or her behalf
- Probate
- Official Court document proving that a Will is authentic or valid
- Realty | Real Property
- Land and interests in land, excluding leaseholds
- Residue (or Residual Estate)
- That portion of an Estate which is left over, after all debts, expenses and bequests have been paid
- Revocation | Revoke
- When a Will no longer has any legal effect
- Right of Survivorship
- In a joint tenancy, the property automatically goes to the co-owners if one of the co-owners dies. A co-owner in a joint tenancy cannot give away his or her share of the property in a Will
- Spouse
- Husband or wife
- Succession
- A term used to describe the body of law relating to the passing of property on the death of a person
- Tenancy in Common
- A type of joint ownership allowing a person to sell his | her share or leave it in a Will, without the consent of other owners. If a person dies without a Will, the share goes to that person’s heirs, not to the other owners
- Tenants in Common
- Two of more landowners whose interest in land is separate and distinct from one another
- Testamentary Expenses
- The expenses involved in obtaining a Grant of Probate of a will
- Testate
- Where there is no Will
- Testator | Testatrix
- The author (male | female) of a valid Will
- Trusts
- Assets which are held and controlled for the benefit of another, usually the beneficiary
- Trustee
- A person who holds and controls property for the benefit of another
- Will
- A legal declaration of how a person wishes his or her possessions to be disposed of after death
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