Glossary
Your guide to understanding key legal terms.
Navigating Wills, Estates, and Probate matters can feel complex if you’re unfamiliar with the terminology. Our comprehensive Glossary demystifies the jargon, providing clear, concise definitions of the most common legal phrases and concepts.
Wills and Estate matters can often be complicated, creating confusion at a time when clarity is most needed. Our goal is to simplify the process, providing straightforward guidance and support to ensure your interests are protected.
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A
Abatement
When the assets of an estate are insufficient to satisfy all gifts and bequests in full, gifts are reduced proportionately in accordance with established rules. This reduction in gifts due to a shortfall of assets is known as “abatement.”
Absolute Interest / Absolute Gift
A gift conferred under a will that is given outright and without any conditions, limitations, or future events that must occur before the beneficiary is entitled to it.
Administrator
A person appointed by the court to manage and distribute the estate of a deceased individual when there is no valid will, or when no executor is named, able, or willing to act.
Appointor
In a trust context, the person (sometimes noted in documents related to an estate plan) who has the authority to appoint or remove trustees.
Appropriation
The allocation of specific estate assets to pay a legacy or to satisfy a beneficiary’s share. This occurs when it’s necessary to set aside particular property from the general assets of the estate.
Assets
All property, investments, personal belongings, and other interests of financial value owned by the deceased at the time of death, which form part of the estate.
Attestation
The act of witnessing the execution (signing) of a will. Witnesses attest that the document was signed properly, voluntarily, and in their presence. An attestation clause in the will records this witnessing.
Attorney (Under an Enduring Power of Attorney)
A person lawfully appointed to act on behalf of another (the principal) in personal and/or financial affairs. In the context of wills and estates, an attorney may manage certain affairs prior to the principal’s death, though their authority ceases upon death.
Ademption
If an asset specifically gifted by a will does not form part of the deceased’s estate at death (e.g., it was sold or given away), the gift is “adeemed” and generally fails unless the will provides otherwise.
Alteration
Any addition to or change in a will or codicil, often handwritten. To be valid, such alterations must typically follow the same formalities required for creating or amending the original will.
B
Bequest
A gift or benefit provided in a will, often referring to personal property or other assets left by the deceased to a beneficiary.
Beneficiary
Any person or organization (e.g., a charity) that receives a gift or benefit from a person’s estate under the terms of a will.
Bare Trust / Bare Trustee
A trust where the trustee holds property for a beneficiary who is absolutely entitled to the trust assets. The trustee’s role is passive, simply holding title until directed by the beneficiary.
Bequeath
The act of giving personal property or other assets to someone through a will. Traditionally “bequeath” applied to personal property, while “devise” applied to real estate, though the terms are often used more broadly today.
Beneficial Interest
The right a person has to enjoy the use and benefit of property that is held legally by someone else (such as a trustee or executor) on their behalf.
Binding Death Benefit Nomination (BDBN)
A direction given to a superannuation fund trustee stating who should receive the member’s death benefit. A valid BDBN compels the trustee to pay the benefit as instructed, rather than exercising discretion.
C
Capacity
The mental competence and understanding required for an individual to make a valid will. A testator must appreciate the nature and effect of making a will, understand the extent of their assets, and comprehend who might reasonably be expected to benefit from their estate. If a person lacks capacity, an application can be made to the Supreme Court for a statutory will to be made on their behalf.
Capital Gains Tax (CGT)
A tax imposed on profits realized from the sale (or deemed disposal) of certain assets acquired after September 1985. While this typically applies to property, shares, and other investments, there are specific rules regarding CGT and deceased estates, including when assets pass to beneficiaries and when CGT events occur.
Child
In Queensland and certain other Australian jurisdictions, the term “child” extends beyond natural children to include stepchildren, adopted children, and children born after the deceased’s death if they survive the deceased by at least 30 days. This inclusive definition affects who may be entitled to inherit or make a family provision claim.
Codicil
A formal, written amendment to an existing will that must be executed with the same formalities as the original will. A codicil can add to, alter, or revoke provisions in the will without creating an entirely new document.
Conflict of Interest
Executors must avoid and manage conflicts of interest, such as when they are also creditors of the estate or beneficiaries themselves. They should act transparently, disclose potential conflicts, and avoid any appearance of favouring their personal interests. In cases of actual conflicts, it is prudent to obtain the express written consent of all affected beneficiaries for the proposed course of action.
Contingent Gift
A gift in a will that takes effect only if a certain event occurs or condition is met. For example, a gift may be contingent on the beneficiary reaching a certain age, surviving another person, or another specified circumstance.
Court Authorisation (Statutory Will)
In cases where a person lacks testamentary capacity, the court may authorise a will to be made, altered, or revoked on their behalf. The court seeks to ensure that the resulting document reflects what the incapacitated person’s intentions might have been, had they the capacity to express them.
D
Debts
Most personal debts owed by the deceased survive their death and must be paid by the estate. These debts, along with funeral and estate administration expenses, are generally settled before any distributions are made to beneficiaries. Creditors should notify the estate administrator of any outstanding debts within six months following the deceased’s death.
De facto
A partner living with the deceased on a genuine domestic basis may qualify as a spouse under family provision and intestacy rules. Factors include a minimum two-year continuous cohabitation period prior to death, interdependence, shared property, shared children, and division of household tasks. Merely sharing a residence does not, by itself, establish a de facto relationship.
Delay
Executors are expected to administer the estate promptly and keep beneficiaries informed of progress, for example with quarterly updates. Unreasonable delays can justify the executor’s removal by the court.
Dependant
This includes a spouse, children of the deceased, and anyone else whom the deceased was substantially supporting at the time of death (e.g., a parent, or the parent of a surviving child). Dependants may be eligible to make a claim against the estate under family provision legislation.
Divorce
In wills made prior to divorce, gifts to an ex-spouse are automatically void upon the grant of a divorce, though the rest of the will remains valid. This rule does not apply to couples who separate but do not divorce, or to the breakup of a de facto relationship.
Distribution
The transfer or payment of estate assets (property or money) to the beneficiaries as provided for in the will or by the rules of intestacy.
DIY (Do-It-Yourself)
Will kits obtained from newsagents or other sources are often completed or executed incorrectly, frequently leading to disputes or the necessity for the court to interpret or rectify the will. Legal advice is generally recommended to ensure a valid and effective will.
Death Certificate
An official government-issued document confirming the deceased’s identity, date, place, and cause of death. This certificate is typically required by executors and administrators to access accounts, settle claims, and begin estate administration.
Devise
Historically, the term used to describe a gift of real property under a will. Although “devise” and “bequest” are sometimes used interchangeably, “devise” is more accurate when referring to real estate.
Disclaim / Disclaimer
A beneficiary may choose to refuse (disclaim) a gift left to them under the will. This refusal must be made clearly and usually in writing. Once disclaimed, the interest usually falls back into the residue of the estate to be dealt with under the will’s provisions.
E
Estate
All property and liabilities of a deceased person at their death, excluding jointly owned property which typically passes to the surviving owner(s) by right of survivorship.
Entitled Person
A person who has the legal right to be provided a copy of the will. This generally includes anyone named as a beneficiary under the current or a former will, as well as the deceased’s spouse, children (including stepchildren), parents, and sometimes former spouses and other close relatives.
Examination (of the Will)
The process undertaken by the court’s Registrar prior to granting Probate, ensuring that all requirements for validity are met and that the will is authentic and properly executed.
Execution (of a Will)
The formal signing of the will by the testator (or by someone else at the testator’s direction and in their presence), and the witnessing of that signature by two independent witnesses present at the same time. Proper execution is essential for the will’s validity.
Executor
The person or persons named in the will to administer the estate. Duties include collecting assets, paying debts and taxes, managing the estate, and distributing the remainder to beneficiaries. An “Administrator” performs the same role when there is no valid will or no named executor able or willing to act.
Executrix
A historically used term referring to a female executor. Modern practice commonly uses “executor” regardless of gender.
Executor’s Commission
Compensation allowed to the executor for their “pains and troubles” in administering the estate. It may be awarded by court order or with unanimous consent of the beneficiaries. Typically, a commission could be up to 6% of income derived and 5% of capital realised.
Executor’s Year
The period of 12 months following the testator’s death during which the executor is generally expected to pay legacies without interest. After this period, beneficiaries may be entitled to interest if distributions are delayed.
Equitable Interest
An interest in property recognized by courts of equity rather than by common law. In the context of estates, a beneficiary under a trust or will holds an equitable interest in the assets, even though the legal title may be held by the executor or trustee.
Enduring Power of Attorney (EPA)
A legal document appointing someone to make personal, health, or financial decisions on behalf of the principal if the principal becomes incapacitated. While this document is relevant before death and does not form part of the estate administration, it often accompanies wills and other estate planning documents.
F
Family Provision Application
A request made to the court by eligible persons (such as a spouse, former spouse, child, stepchild, or a person who was financially dependent on the deceased) seeking a greater share of the estate than what was left to them under the will. The court may adjust the distribution to provide adequate provision for their proper maintenance and support.
Fiduciary Duty
In addition to their statutory obligations, an executor owes a fiduciary duty to the estate and its beneficiaries. This duty requires the executor to act honestly, in good faith, and in the best interests of the estate, avoiding conflicts of interest and not profiting personally unless authorized.
Formal Validity
Compliance with the legal formalities required to create a valid will. These may include having the document in writing, signed by the testator and witnessed by two independent witnesses who are present at the same time.
Foreign Grant of Probate
A grant of probate issued by a court outside of the jurisdiction where the deceased’s estate is being administered. Often, a “reseal” or “ancillary grant” is required to recognize and enforce a foreign grant in the local jurisdiction.
Funeral Expenses
Costs associated with the deceased’s funeral, burial, or cremation are typically payable from the estate before any distributions to beneficiaries. Executors usually have the authority to pay these reasonable expenses without court approval.
Forfeiture Rule
A common law principle (subject to statutory modifications) preventing a person who unlawfully kills the deceased from benefiting under the deceased’s will or estate.
G
Guardianship
The responsibility for the day-to-day care and wellbeing of minor children (infants) who have been left without parents due to death or incapacity. In a will, a testator can express a wish as to who should act as guardian for their children if both parents are deceased. While this expression of intent is not automatically binding, it greatly influences the court’s decision if formal guardianship orders are required.
Gift Over
A provision in a will that specifies what happens to a gift if the original beneficiary predeceases the testator or otherwise cannot take the gift. The gift “passes over” to another named beneficiary or to the residue of the estate, ensuring that the intended benefit does not fail.
Grant of Probate
A legal document issued by the Supreme Court confirming that a will is valid and that the executor named in it has the authority to administer the deceased’s estate. The grant is typically required before an executor can collect the estate’s assets or distribute them to beneficiaries.
Grant of Representation
A general term covering both grants of probate (when there is a valid will and executor) and grants of letters of administration (when there is no will or no named executor). It legally empowers the person named in the grant to deal with the deceased’s estate.
H
Hotchpot
A traditional legal concept where the value of certain gifts given by the deceased during their lifetime is taken into account (or “brought into hotchpot”) to ensure fairness among beneficiaries. In practice, if a beneficiary received a substantial gift before the testator’s death, its value might be offset against what they receive under the will, preventing them from receiving a disproportionate share of the estate.
Heir
A term historically used to describe a person entitled to inherit property from the deceased under the laws of intestacy (when there is no valid will). In modern usage, “heir” is often replaced by “beneficiary” for those named in a will, though “heir” may still be used colloquially or in jurisdictions that recognize the distinction.
Holographic Will
A will entirely handwritten and signed by the testator. While not all jurisdictions recognize holographic wills, those that do often require proof that the document is entirely in the testator’s handwriting and that the testator intended the document to serve as their will.
Hereditaments
Historically, a term used to describe any type of property (real or personal) that can be inherited. In contemporary wills and estates practice, the term is less common, but may still appear in older documents.
I
In Specie
Distribution of an estate asset directly to a beneficiary, rather than converting it to cash and distributing the proceeds. For example, transferring shares in a company or giving a piece of real estate to a beneficiary “in specie” allows the beneficiary to receive the asset itself instead of money from its sale.
Issue
A legal term meaning “child” or “descendant.” In the context of wills and estates, “issue” may include children, grandchildren, and further descendants.
Inter Vivos
A Latin phrase meaning “during life.” Inter vivos transfers occur while the individual is still alive, as opposed to “testamentary” dispositions, which take effect upon death.
Intestacy
The state or condition when a person dies without leaving a valid will. In such cases, their estate is distributed according to statutory rules, typically providing shares to the surviving spouse, children, or other relatives. If no relatives can be located, the estate may pass to the state. Intestacy can also refer to the absence of a valid disposition of a particular asset, leading that asset to be distributed according to the laws of intestacy.
Interested Person (Interested Witness)
A witness to a will who stands to receive a gift under it. Such gifts are generally void unless there are at least two other independent witnesses, or the court is satisfied that the testator made the gift freely and voluntarily without undue influence.
Incorporation by Reference
A legal principle allowing a will to include and give effect to other documents not physically attached to the will, provided the intention and identification of those documents are clearly stated in the will.
Informal Will
A document that may not strictly comply with formal execution requirements but can be recognized by the court as the deceased’s intended will if evidence supports that the deceased intended the document to serve as their will. This often involves applying to the court for a ruling on the document’s validity.
J
Jointly Owned
Property held “in joint names,” such as joint bank accounts or a family home registered as “joint tenants,” passes automatically to the surviving joint owner(s) upon the death of one owner. This property does not form part of the deceased’s estate and is not dealt with by the will or intestacy laws.
Joint Tenancy
A form of co-ownership of property where each co-owner has an equal interest and the right of survivorship. Upon the death of one joint tenant, the surviving joint tenant(s) automatically inherit the deceased’s share, bypassing the estate.
Jurisdiction
The authority or legal area in which a court operates and has the power to grant probate, interpret wills, and oversee the administration of estates. Different jurisdictions (e.g., states or countries) may have varying laws and processes governing estates and wills.
Judicial Advice
Executors or trustees can apply to the court for “judicial advice” or “directions” when uncertain how to proceed with an issue related to estate administration. The court’s guidance provides legal protection if the executor or trustee follows it.
K
Kin
Relatives among whom an intestate estate is distributed when there is no surviving spouse or child. “Kin” can include siblings, nieces, and nephews (first tier), grandparents (second tier), and uncles, aunts, and cousins (third tier), depending on the intestacy rules of the jurisdiction.
Keeper of the Will
An informal term sometimes used to describe the person or entity holding a will for safekeeping until the testator’s death. While not a formal legal role, the “keeper” may be asked to produce the will upon the testator’s death for probate and estate administration.
L
Letters of Administration
A grant issued by the court when a person dies without a valid will (intestate), authorizing a suitable relative or, in some cases, a creditor of the deceased to manage and distribute the estate. Priority is given to individuals with a closer relationship to the deceased.
Life Interest
A right granted to a beneficiary to use and enjoy an asset (such as a home) or to receive income generated by an asset for the duration of their lifetime. Upon their death, the asset “reverts” back to the estate or passes on as directed, typically to residuary beneficiaries or another life interest holder.
Life Insurance
The proceeds of a life insurance policy typically pass directly to the named beneficiary. If no beneficiary is specified, the proceeds are paid into the deceased’s estate and distributed in accordance with the will or intestacy laws.
Location
A will can be limited by jurisdiction, applying only to property within a specific place (e.g., Australia). This can simplify the executor’s responsibilities and reduce the need to understand or comply with succession laws in other regions where the deceased held assets.
Legacy
A gift of personal property or money left to a beneficiary under a will. Although often used interchangeably with “bequest,” legacy is historically associated with personal property, while devise refers to real property.
Lapse
The failure of a gift in a will because the beneficiary dies before the testator or otherwise cannot receive the gift. Unless the will specifies an alternative beneficiary, the gift typically returns to the residue of the estate.
M
Maintenance
Financial support provided for the education, upbringing, and general welfare of minor beneficiaries. Many wills grant executors a discretionary power to use funds otherwise payable to a child at a future age (e.g., 18 or older) for that child’s maintenance while they remain minors.
Minor
A person under the age of 18. Generally, minors cannot make a valid will unless they are making it in “contemplation of marriage.” Upon reaching the age of majority (18), a person can execute a valid will.
Marriage
A legal marriage revokes any will made prior to the marriage, unless the will explicitly states that it is made “in contemplation of” that marriage. If so, the will remains valid after the marriage takes place.
Mutual Wills
Wills made by two individuals (often spouses) in accordance with an agreement to provide mirrored or corresponding benefits to each other. They typically stipulate that neither party will alter their will after the first has died. Disputes can arise if one party attempts to change their will contrary to the agreement, especially in blended family situations.
Memorandum of Wishes
A non-binding written statement by a testator expressing how they would like their executors or trustees to deal with certain assets or beneficiaries. While not legally enforceable, it can guide those administering the estate.
Mental Incapacity
A state in which a person lacks the legal capacity to understand the nature and effect of making a will. If someone lacks capacity, the court may make a “statutory will” on their behalf.
Matrimonial Home
The primary residence occupied by a married or de facto couple. In the context of wills and estates, the matrimonial home often receives special consideration under family provision or intestacy rules, ensuring the surviving spouse or partner has rights to occupy or benefit from it.
N
Nomination (Superannuation)
A formal procedure by which a superannuation fund member designates who should receive their death benefits. A “binding nomination” compels the trustee to pay the superannuation benefit to the nominated beneficiary(ies), while a “non-binding” or “preferred” nomination guides the trustee’s discretion.
Next of Kin
The closest living relative(s) of a person, determined by statutory definitions. In the context of intestacy, next of kin typically include spouses, children, and more distant relatives, who may inherit the deceased’s estate if no will exists.
Non-Probate Assets
Assets that pass directly to a beneficiary outside of the will and do not form part of the deceased’s estate. Examples include assets held in joint tenancy, certain insurance policies, and superannuation benefits with a binding death benefit nomination.
Notional Estate
In some jurisdictions, assets not directly owned by the deceased at the time of death, but which can be considered by the court when making family provision orders. This can include assets gifted shortly before death or placed in certain trusts, ensuring family provision claims cannot be easily circumvented by disposing of assets before death.
O
Outgoings
Expenses incurred in maintaining or preserving an estate asset (such as rates, insurance, or repairs) after the deceased’s death but before its distribution to a beneficiary. Disputes can arise if the will does not clearly specify who should bear these costs — the estate at large or the particular beneficiary — or for how long such expenses are to be paid.
Onerous Asset
An asset in the estate that may be costly or burdensome to maintain, such as property requiring extensive repairs or specialized care. Executors and beneficiaries may need to decide whether to retain, repair, or dispose of the asset, and how those costs should be allocated.
Option (in a Will)
A right granted to a beneficiary to purchase certain estate assets (e.g., the family home, a business interest) at a specified price or under certain conditions. This allows a beneficiary to secure a particular asset rather than receive a share of sale proceeds.
Overseas Assets
Property located outside the jurisdiction where the estate is being administered. Dealing with overseas assets may require additional legal steps such as obtaining a separate grant of probate or letters of administration in the other country’s jurisdiction.
P
Pass Over
A court order sought by a beneficiary or another interested party to prevent a named executor from obtaining a grant of probate, effectively skipping them. To succeed, the applicant must present strong and convincing reasons (e.g., conflict of interest, incapacity, misconduct) to the court before the grant of probate is issued.
Per Stirpes
A Latin phrase meaning “by branch.” It describes how property should be distributed if a beneficiary who has descendants dies before the testator. Under a per stirpes distribution, the deceased beneficiary’s share passes proportionately to their children (or further descendants), rather than being divided solely among the surviving beneficiaries at that generation.
Perpetuity (Rule Against Perpetuities)
A legal principle preventing a will or trust from controlling assets indefinitely. Eventually, property must vest (become fully owned) in a living person within a certain time frame (often measured as a life in being plus a statutory number of years, commonly up to 80 years). This ensures assets cannot be “tied up” forever.
Probate
The formal recognition by the Supreme Court that a will is valid and that the named executor has authority to administer the estate. For most estates, especially those involving more than minimal assets, probate must be obtained before institutions (e.g., banks) will release the deceased’s assets to the executor.
Provisioned
In estate accounting provided to beneficiaries, an amount set aside (“provisioned”) to cover estimated liabilities—such as anticipated legal fees, accountant’s charges, or taxes—is recorded. These provisional amounts ensure beneficiaries are aware that funds may be reserved for expenses not yet finalized.
Power of Attorney
Although not strictly part of a deceased’s estate, a power of attorney granted during the testator’s lifetime allows a trusted individual to make decisions on their behalf (financial, health, or personal) while they are still alive. This authority generally ceases upon the principal’s death, after which the executor or administrator takes over.
Q
Qualified Disclaimer
A formal refusal by a beneficiary to accept a gift or bequest from an estate. If made in accordance with legal requirements, it treats the beneficiary as if they had predeceased the testator, ensuring the disclaimed gift passes to the next entitled person. This can have tax or succession implications and must be executed within specified time limits and under strict conditions.
Quasi-Intestacy
A situation where a portion of the deceased’s property is not effectively disposed of by their will. Even if a will exists, if some assets are not accounted for or a gift fails (e.g., due to lapse or ademption), that portion of the estate may be distributed according to intestacy rules as though no valid disposition was made for that asset.
Quiet Title Action
Although not specific to wills, a quiet title action may arise in estate matters when the executor or beneficiaries seek a court order to clarify or confirm ownership of property that may be subject to disputed claims. This ensures the estate’s title to the asset is clear before distribution.
R
Renunciation
The act by which a person named as executor in a will formally declines to accept the position. Once an executor renounces, they cannot later change their mind and take up the role without court approval.
Removal
A court-ordered action to remove an executor or testamentary trustee from their position due to issues such as misconduct, conflict of interest, ill health, or unreasonable delays in administering the estate. Beneficiaries or interested parties may apply to the court for such removal if they can show cause.
Residuary Beneficiary
A beneficiary who is entitled to receive the residue of the estate. The residue is what remains of the estate after payment of all debts, taxes, administration expenses, and after all specific gifts and legacies have been distributed.
Residue
The remainder of the estate that is left after all specific gifts and legacies have been paid or transferred, and all debts, taxes, and expenses have been settled. Residuary beneficiaries share this portion according to the terms of the will.
Revocation
The formal cancellation or invalidation of an earlier will. Typically, a new will expressly revokes all previous wills. The term also applies to the revocation of a grant of probate by the court if it later appears that the will or the grant was not valid or was obtained by fraud or mistake.
Reseal of Probate
When a grant of probate (or letters of administration) obtained in one jurisdiction is recognized (“resealed”) by a court in another jurisdiction, allowing the executor or administrator to deal with assets held in that other jurisdiction without obtaining a full new grant there.
Real Property
Land and any buildings or other permanent structures on it. In an estate context, real property may be devised to specific beneficiaries or sold by the executor to raise cash for distribution.
S
Safe Custody
A secure facility offered by banks, solicitors, or other institutions for storing important documents (such as wills, title deeds, and valuables) to protect them from loss, damage, or unauthorized access.
Solemn Form
A formal judicial proceeding to prove a will’s validity. While probate is often granted in “common form” without extensive evidence, if legitimacy is challenged—e.g., due to concerns about the testator’s capacity or allegations of undue influence—the will may be proved “in solemn form.” Once pronounced in solemn form, the will’s validity is generally conclusive, barring fraud or discovery of a later will.
Spouse
For estate law purposes, “spouse” includes a husband, wife, or de facto partner. It can also extend to a former husband or wife who was still entitled to receive maintenance from the deceased at the time of death and who has not remarried. Same-sex partners are included as spouses under Australian law.
Statutory Will
A will authorized and made by the Supreme Court on behalf of a person who lacks testamentary capacity. The court seeks to reflect what the person’s likely wishes would have been if they had capacity.
Succession Act
Legislation governing wills, intestacy, family provision, and related estate matters in a particular jurisdiction. Each Australian state has its own Succession Act or equivalent legislation.
Superannuation
Retirement funds held in a superannuation account. Most superannuation policies include death benefits. If there is a valid binding death benefit nomination, the fund’s trustee generally pays benefits as directed. If not, the trustee may exercise discretion in payment, which may result in benefits being paid to the estate or dependants.
Supreme Court
The highest state-level court in each Australian state and territory with jurisdiction over wills, trusts, and estates. The Supreme Court grants probate, letters of administration, and hears disputes related to wills and estates.
Survival (Survivorship Clause)
Many wills require a beneficiary to survive the testator by a certain period (often 30 days) to inherit. If the beneficiary dies within that period, the gift is treated as if the beneficiary had predeceased the testator.
Survivor
In cases where multiple people die in the same calamity and the order of death cannot be determined, the law presumes they died in order of seniority. The younger is presumed to survive the elder by one day, affecting how property passes.
Survivorship
The principle that property owned jointly passes automatically to the surviving co-owner(s) upon the death of one owner, bypassing the deceased’s estate entirely.
Surety
In the context of letters of administration or administration bonds, a surety may be required to guarantee the administrator’s performance. This ensures the estate is protected if the administrator fails in their duties.
T
Testator
A person who makes a will. Traditionally, “testator” referred to a male and “testatrix” to a female, but “testator” is now used regardless of gender.
Testamentary Disposition
A provision in a will or codicil by which the testator disposes of an asset to a beneficiary. It represents the key element of a will, transferring ownership of property after the testator’s death.
Testamentary Trust
A trust created by a will. It comes into effect only upon the testator’s death. The will must specify the trustee (or how the trustee is appointed), the trust’s purpose, the trust assets (which are typically drawn from the estate), the beneficiaries, and the nature and timing of their benefits. Testamentary trusts can be used to preserve assets across multiple generations, protect vulnerable beneficiaries, or provide tax advantages.
Testamentary Trustee
The person appointed by the will to manage a testamentary trust. Often, the executor of the will is also named as the trustee, but the roles can be separate if desired.
Time Limits
Estate-related claims often must be made within strict timeframes. For example, a family provision claim (seeking a larger share of the estate) typically requires notice to the executor within six months of the deceased’s death and must be filed in court within nine months. Missing these deadlines can forfeit the right to make the claim.
Trustee
Although not strictly limited to testamentary contexts, a trustee holds and administers property on behalf of beneficiaries. In the context of wills, the trustee of a testamentary trust manages the assets according to the will’s instructions.
Transmission Application
A procedure used to register a change in property ownership upon the death of the owner. For example, the executor or administrator may need to lodge a transmission application with the land titles office to legally recognize the shift from the deceased owner to the estate or beneficiaries.
U
Undue Influence
Improper pressure, coercion, manipulation, or similar conduct exerted on a testator to benefit a particular person under a will. If the court finds that undue influence has been exercised, it can invalidate the entire will or the affected portion of it.
Unascertained Beneficiary
A beneficiary described in a will whose exact identity cannot be determined (e.g., “the first child of my nephew who becomes a doctor”). If no one meets the description, or the class of persons is unclear, the gift may fail or pass to the residue of the estate.
Unclaimed Assets
Estate assets that have not been collected by or delivered to the rightful beneficiaries or heirs. Over time, if these assets remain unclaimed, they may be transferred to a government authority, where they can still potentially be claimed by the entitled beneficiary later on.
V
Vesting
The point in time when a beneficiary’s interest in a deceased’s estate becomes fixed and absolute, transferring legal control and ownership from the executor to the beneficiary. Wills often specify a “vesting date” or condition—such as a beneficiary reaching a certain age or the occurrence of a particular event—before the beneficiary’s interest vests.
Valid Will
A will that satisfies all legal requirements, including proper execution, testamentary capacity, and absence of undue influence or fraud. Once deemed valid by the court (e.g., through a grant of probate), the will governs the distribution of the estate.
Void Gift
A gift in a will that fails entirely, often because the beneficiary predeceased the testator without substitution, or due to uncertainty, illegality, or a condition that cannot be fulfilled. If void, the gift typically passes into the estate’s residue or is redistributed according to the will’s terms or intestacy rules.
W
Witness
A person who is present when a document (such as a will) is signed and who confirms its authenticity by adding their own signature. For a will, two independent witnesses are typically required, each present at the same time and observing the testator sign or acknowledge the will.
Will
A legal document expressing a person’s intentions regarding the distribution of their estate after death. To be valid, it must generally be in writing, signed by the testator, and properly witnessed.
Will Kit
A DIY product (often a booklet or form) that guides a person in drafting their own will. While inexpensive and convenient, will kits are frequently a source of errors and disputes if not completed or executed in strict accordance with legal requirements.
Void Gift
A gift in a will that fails entirely, often because the beneficiary predeceased the testator without substitution, or due to uncertainty, illegality, or a condition that cannot be fulfilled. If void, the gift typically passes into the estate’s residue or is redistributed according to the will’s terms or intestacy rules.
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| Monday | 8:30 am – 6:00 pm |
|---|---|
| Tuesday | 7:30 am – 6:00 pm |
| Wednesday | 7:30 am – 6:00 pm |
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| Friday | 7:30 am – 5:00 pm |
| Saturday | Closed |
| Sunday | Closed |
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