Glossary of Common Probate Words and Terms


 A common law doctrine when assets of the deceased are less than the debts to the creditors and those debts must be paid first.


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.


 A person appointed by law to settle the affairs of someone who dies without a Will.


 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.


 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


 A person or organisation receiving a gift from a Will.


 A verb which means to give; to grant or give something to another person or entity.


 A gift in a Will left to a specific person or organisation.


 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.


 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.


 A person who relies upon another for financial support.


 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.


 Dissolution of Marriage (which may result in a need to change a Will).


 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.


 The act of signing and dating a Will and having it witnessed.


 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.


 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.


 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.


 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).


 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.


 A gift of property left in a Will.


 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.


 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.


 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.


 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.


 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.


 Husband or wife.


 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.


 Where there is Will.

Testator | Testatrix

 The author (male | female) of a valid Will.


 Assets which are held and controlled for the benefit of another, usually the beneficiary.


 A person who holds and controls property for the benefit of another.


 A legal declaration of how a person wishes his or her possessions to be disposed of after death.

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