Matters concerning wills and estates can be complex and overwhelming at times. At Arenburg Legal we believe that it’s essential that you understand the legal processes you find yourself engaging in. To help you out, here is our handy guide to the most commonly-used legal terms in wills and estates planning.
A
Ademption – A gift or asset that is to be given by will to a beneficiary is ‘adeemed’ if it is disposed of by the deceased before death.
Administration of estate – The process undertaken to carry out the terms of the will, normally done by the Executor or Administrator.
Asset – Property owned by a person. Includes real property and personal property.
B
Beneficiary – Any person or organization (for example, a charity) who inherits or receives a benefit under the terms of a will.
Bequest – A gift or benefit provided in a will.
C
Capacity – The mental capacity required for a person to make a will.
Child – Natural children. In Queensland, this also includes any stepchild or adopted child including a child born after the date of the deceased’s death who survives the deceased by at least 30 days.
Codicil – A document that amends a will. A codicil requires the same formalities as a will (must be made by the testator, dated, signed and witnessed as per the requirements of a will).
D
Defacto – A defacto partner is ‘either one of two persons living together as a couple on a genuine domestic basis but who are not married or related.’ A defacto partner has the same rights as a spouse and can be any gender. There are a set of circumstances that will apply to determine whether a defacto partnership exists (e.g. how long the pair have been living together, and the nature of their relationship).
E
Entitled person – A person entitled to receive a deceased’s property, either by will or law.
Estate – The real and personal property owned by the deceased person. This can include money, shares, vehicles, land and personal belongings.
Estate plan – An overarching term used to describe decisions made that relate to preparing a will or preparing a power of attorney.
Executor – The person appointed in a will who has responsibility and authority to manage the estate of the deceased person.
I
Intestate – If you die without a will, you are said to have died ‘intestate’. The laws of intestacy, outlined in the Succession Act 1981 (Qld), determine how your assets are distributed in this case.
Issue – A person’s descendants or offspring.
Interested person – A person who witnesses the signature of the testator on a will.
J
Jointly owned – Property owned in joint names. Where property is owned jointly, it cannot be included in a will.
L
Letters of Administration – When someone has died intestate, letters of administration are issued to appoint a particular person or persons to administer a deceased person’s estate (the Administrator).
Life interest – A lifetime gift (for example the gift of living in a particular property until the recipient’s death).
M
Minor – A person under 18 years of age.
Mutual wills – Wills made under an agreement, usually by a couple, to confer corresponding benefits in their wills.
P
Personal effects – Items of personal property, such as jewellery or clothing.
Personal property – All types of property other than land and interests in land.
Probate – The recognition of a will as legally valid. A grant of probate recognises someone’s authority to deal with the estate of a person who has passed away. This grant is needed before an Executor or Administrator can deal with a deceased’s assets.
Power of attorney (enduring) – A power of attorney where the principal or donor appoints a person to handle their financial and property affairs in case of incapacitation.
Power of attorney (general) – The authority for one person to act as agent for another, conferred by an instrument.
R
Real property – Land and buildings as a physical entity or interests in land (such as a lease or mortgage).
Residue of estate – What is left over of the estate after payment of all expenses in connection with the estate.
Residuary legacy – A gift by will of all personal property left within the residue of a deceased estate after the disposition of the general, specific and demonstrative legacies and payment of estate expenses and debts.
S
Spouse – Includes de facto partners and former husband or wife, if they are receiving (or entitled to receive) maintenance from the deceased and have not remarried.
Survivorship –The law relating to jointly owned property that allows it to pass automatically to the surviving joint owner rather than becoming part of the deceased’s estate.
T
Testamentary trust – A trust specified by will that arises upon the death of the testator.
Testator – The person who makes a will.
V
Vesting – Where an interest from a deceased’s estate arrives into the hands of a beneficiary and the beneficiary, rather than the executor, has legal control and ownership of interest.
W
Will – A legal document that ensures (as far as possible) your assets are distributed according to your wishes, after you die.
As always, if you would like assistance regarding wills and estates please don’t hesitate to get in touch with us on (07) 31815554 or .