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Glossary of Common Probate Words and Terms

Glossary of Common Probate Words & Terms - Probate Lawyers Directory

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 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