Interpreting a Will can be complex because of the legal jargon involved. We have done our best to simplify the terms of our client’s Wills but there are still some essential legal terms. This guide should give you a better understanding of some of the words used in estate planning documents.
Administrator
An administrator is broadly appointed in three situations:
- Where there is no Will left by the deceased.
- Where there is no valid Will left by the deceased.
- Where there is a valid Will, but for some reason the executor cannot act.
The administrator is given a Grant of Letters of Administration, which means they are the person authorised by the Supreme Court to deal with the estate assets.
Attest
This means the signing of the Will in the presence of the witnesses, who also sign. A Will is generally not valid unless the testator signs in the presence of 2 or more witnesses (section 6 of the Succession Act 2006).
Beneficiary
A beneficiary is a person who has been provided for in a Will. This can be a specific gift, an amount of money or described as a share of the value of the estate.
Bequest
This is an older term for the gift of personal property to a beneficiary. It isn’t necessary to differentiate between personal and real property so we use the word ‘give’ in our Wills. This covers a gift of any kind.
Codicil
This document adds a term or amends the provisions of a current Will. It must be attested in the same way a Will is. In the modern world, where Wills are prepared with word processing, codicils are increasingly rare.
Devise
This an older term for the gift of real estate to a beneficiary. As with bequests, it isn’t necessary to differentiate between personal and real property so we use the word ‘give’.
Estate
When we refer to a person’s estate we are referring to all the assets that are owned by the deceased.
Estate administration
This is the process of giving effect to the terms of the will and generally takes place after a Grant of Probate or Grant of Letters of Administration has been made by the Supreme Court. We attend to paying out any estate debts and then distribute the estate to the beneficiaries.
Family provision
This refers to a claim made under the Succession Act 2006 (NSW) for provision, or greater provision under a Will. You can find more information here.
Intestacy
If a person dies without a Will they die intestate. The Succession Act 2006 (NSW) provides how assets would be distributed in New South Wales on intestacy.
Joint Tenants
This is a form of co-ownership and extends from real estate to money in the bank. On death, the property of the deceased held as Joint Tenants passes to the co-owner.
Legal Personal Representative
Also known as the Executor or Administrator.
Letters of Administration
An Order made by the Court granting authority to the Administrator to manage the estate administration.
Probate
An Order made by the Supreme Court granting authority to the Executor to handle the estate administration. Probate can be granted where there is a valid Will of the deceased.
Residue
The residue is the share in an estate that is left after payment of debts and specific gifts have been distributed. There can be one or more residuary beneficiaries in a Will who may receive equal or unequal shares of residue.
Tenants in Common
This is another form of co-ownership. Where the deceased owns property with another person as ‘tenants in common,’ their share will form part of their estate. Unlike joint tenants, property held as tenants in common does not automatically pass to the other owner/s.
Testamentary capacity
When we see you in relation to your Will, we need to ensure you have testamentary capacity. These are the things we need to be satisfied of:
You must understand the nature of the Will and its effect. This does not mean you must understand the legal terminology, we can explain that to you.
You must also know the extent of the property which you giving away by your Will.
You must be aware of the people who you would be expected to provide for, even if you choose not to. You must also be free of any delusion of the mind that would cause you not to provide for those people. For example, a husband, wife, son or daughter.
Testator and Testatrix
The male and female terms for people who make a Will. We also refer to these people as the ‘Will Maker’.
Vesting age
You may want to hold assets on trust for certain beneficiaries until they reach a specific age, for example the age of 18 or 21. The age you choose is then called the vesting age. The legal personal representative holds the entitlement on trust, until the vesting age is reached. The beneficiary might have some access to the asset prior to the vesting age (for example, the trustee may be authorise to make payments on the beneficiary’s behalf to ensure their health or education) but they will not have ultimate control until attaining the vesting age.
