Wills, Intestacies, Estates and Funerals

Glossary of Legal Words used

Administration and Probate Act means the Administration and Probate Act 1929 (ACT).

Administrator -- a person appointed by the court to administer the estate because no executor was appointed by the will, no will was made, or the persons appointed by the will renounce the executorship. Sometimes the general term "personal representative" is used to include executors and administrators.

Attestation clause -- the clause near the end of the will that states that the testator and the witnesses signed the will in the presence of each other. The attestation clause states that the required formalities were complied with.

Beneficiary -- a person who takes a part or a share of the deceased person's estate.

Capital Gains Tax -- Capital Gains Tax is another important part of taxation. It affects estate planning, and it affects the drafting of wills. In particular, a will which provides that property must be sold on the testator's death, or gives to a beneficiary an option to purchase estate assets, is likely to have adverse capital gains tax implications. Professional advice is particularly important where taxation issues arise.

Codicil -- a legally valid document which adds to or alters a will.

Death Duties -- Along with Federal Estate Duty and Gift Duty, State and Territory death duties have been abolished.

De facto spouse -- This definition is not used in ACT legislation--see definitions of "partner" and "eligible partner". In the Australian Capital Territory the de facto spouse is entitled to inherit on intestacy (Administration and Probate Act), or to claim family provision if left without adequate provision for proper maintenance, education and advancement in life (Family Provision Act), but the relationship which could be described as "de facto spouse" is covered by "eligible partner" and "partner".

Domestic partner -- is defined in s 169(1) of the Legislation Act 2001 (ACT): "someone who lives with the person in a domestic partnership, and includes a reference to a spouse of the person". The "domestic partner" is entitled to claim family provision and in certain circumstances is entitled to receive through intestacy.

Domestic partnership -- is defined in s 169(2) of the Legislation Act 2001 (ACT): "the relationship between 2 people, whether of a different or the same sex, living together as a couple on a genuine domestic basis". This section lists indicators that the court may look to in ascertaining the existence of domestic partnership. These include:

• the length of the relationship;
• whether they are living together;
• whether there is a sexual relationship;
• financial dependence and interdependence;
• whether they mutually care for and support children;
• the ownership, use and acquisition of their property; and
• the reputation, and public aspects, of the relationship between them.

This list is not exhaustive.

Eligible partner - under s 44(1) of the Administration and Probate Act the "eligible partner" of an intestate means someone, other than the spouse of the intestate, who --

(a) was the intestate's domestic partner when the intestate died; and

(b) either --

(i) had been the intestate's domestic partner continuously for 2 or more years when the intestate died; or

(ii) is the parent of the intestate's child, if the child was under 18 years old when the intestate died.

The eligible partner thus defined is entitled to inherit on intestacy.

Estate -- the assets and liabilities left by a person who has died.

Estate Duty -- Federal Estate Duty has been abolished.

Executor -- a person appointed in a will or codicil to wind up the estate. Sometimes the general term "personal representative" is used to include executors and administrators.

Family Provision Act means the Family Provision Act 1969 (ACT).

Fiduciary -- is, according to The Oxford Companion to Law:

a person in a position of trust, or occupying a position of power and confidence with respect to another, such that he [or she] is obliged by various rules of law to act solely in the interests of the other, whose rights he [or she] has to protect. He [or she] may not make any profit or advantage from the relationship without full disclosure. The category includes trustees, company promoters and directors, guardians, solicitors and clients, and others similarly placed. (Walker, p 469).

Agents, including attorneys and personal representatives are also fiduciaries.

Grant in Common Form -- a grant (of probate or letters of administration) is made in common form when the application for grant is uncontested -- it is not opposed by anyone -- and the Registrar of Probates is able to make the grant on the basis of the papers before him or her. All straightforward grants are in common form, and almost all grants are made in this way -- see too, "grant in solemn form".

Grant in Solemn Form -- a grant (of probate or letters of administration) is made in solemn form when the application for grant is contested, and the two opposing sides have to be heard by a judge. Occasionally the Registrar or the executor will ask for a grant in solemn form if there are serious doubts about the will -- see too, "grant in common form".

Grant of Letters of Administration -- (sometimes called simply "grant of administration") court authority to act as administrator and to administer the estate. A Grant of Letters of administration is needed when there is no executor. As with straightforward grants of probate, the Registrar of Probates makes straightforward grants of letters of administration. The choice of the person to whom the court will grant letters of administration can sometimes be complicated, but the principle is that the court will give the task of administration to the person who is entitled to the largest share of residue. If there are several who share the residue equally, the court will choose one of them rather than make a joint grant to more than one.

Grant of Probate -- court authority to act as executor and to administer the estate. The court gives its authority to the executor named in the will when the executor has satisfied the court -- proved to the court -- that the will is genuine and validly executed, and that the applicant for grant is indeed the person named as executor in the will. "Probate" is the Latin for "proof", and is simply a certificate from the court affirming that the will has been proved. In the ACT, by statute, the Registrar of Probates, who is an officer of the Supreme Court, exercises this function of the Supreme Court, and makes all straightforward grants of probate: Court Procedures Rules 2006 (ACT) ('the Court Procedures Rules') r 6250 and Schedule 5 Part 5.1

Grant of Representation -- the general term covering different forms of grant: grant of probate if the grant is to an executor named in the will, or grant of letters of administration if the court has to choose and appoint someone to administer the estate.

Income Tax -- this is a major form of taxation, and minimisation centres on:

(a) capital gains, or

(b) income spreading.

Intestate -- leaving no will. See, too, Testate and Partial Intestacy.

Intestacy Rules -- the statutory rules that lay down to whom the property goes when the deceased has not left a valid will or has not validly indicated to whom her or his estate should pass on the person's death.

Joint Tenancy (see too "tenancy in common") -- a form of co--ownership in which the following principles apply.

• There are no shares -- in theory each joint tenant has the whole of the property. No party has a specific share in the property while the joint tenancy continues. This means that the joint tenants must have equal interests in the property, and are entitled equally to its rents and profits. There can be two or more joint tenants.
• The principle of "survivorship" applies -- on the death of one joint tenant the surviving joint tenant gets the whole property automatically by operation of law, irrespective of any will made by the joint tenant who died, and irrespective of the intestacy rules. This gives considerable protection to a joint tenant.

It follows that property held in joint tenancy does not form part of the estate of a joint tenant who dies. This is important when deciding whether a grant of probate is needed; for example, a grant is required if the estate contains land. However, where land is held in joint tenancy by the deceased and a surviving joint tenant, the property passes automatically, by operation of law, to the survivor without forming part of the estate of the first--dying. A grant of probate is therefore not required for transfer (to the other joint tenant or tenants) of property held by the deceased as a joint tenant.

• Joint tenant's interest cannot be given by will - a joint tenant cannot in his or her will deal with property held in joint tenancy, because the property goes automatically to the other joint tenant on the death of the testator. The only additional matter to note here is that the last surviving joint tenant can bequeath the property in his or her will as there is no joint tenant left.
• The principle apples to all property -- the principle of joint tenancy applies to personal property as well as real property-- it applies to furniture and bank accounts as well as to land.
• When joint tenancy is used -- in many situations, but typically where a couple purchase property together and they want the property to be held equally, and they also want the principle of survivorship to apply they usually have it registered in their names as joint tenants. They would probably wish to do so if there are no children of a previous relationship to consider. On the other hand, it would not usually be appropriate to register a house in joint names where one partner to a relationship (such as marriage) buys the house using only her or his own money or has contributed much more to the house than the other partner.
• It is not usual to give property by will to beneficiaries jointly.

Lay person-- a person who is not professionally trained as a lawyer, or in the law of succession.

Legacy -- a gift of personal property in a will (that is, a gift of property other than land).

Legatee -- a person who receives a legacy.

Letters of administration -- see "grant of letters of administration", above.

Partial intestacy - having left a will which deals with only part of the testator's estate, so that the rest of the estate passes under the intestacy rules.

Partner -- is defined under both the Family Provision Act and the Administration and Probate Act.

Under s 7(9) of the Family Provision Act "partner" of a deceased person means someone who:

(a) was the domestic partner of the person at any time; and

(b) either --

(i) was the person's spouse at any time; or

(ii) was the person's domestic partner continuously for 2 or more years at any time; or

(iii) is the parent of a child of the person.

The partner thus defined is entitled to claim family provision.

Under s 44(1) of the Administration and Probate Act a partner is either "the spouse of the intestate when the intestate died" or the "eligible partner of the intestate". See also definitions of "domestic partner" and "eligible partner".

Personal Representative -- the global term which includes executors and administrators.

Probate -- see "grant of probate", above.

Probate Registrar -- see Registrar of Probates.

Public Trustee -- a government official whose office specialises in the preparation of wills and the administration of deceased estates. The Public Trustee also acts as trustee in life estates and in trusts generally. The Public Trustee's charges for drawing wills are moderate. The Public Trustee normally requires to be named as executor of wills drawn by the Public Trustee. In many cases, particularly where conflicts within the family are possible, or long-term professional oversight of estate assets will be required, the Public Trustee's impartiality and professionalism will be an advantage. The website is www.publictrustee.act.gov.au. For other contact details see Contacts, Links and Resources.

Registrar of Probates -- The Registrar of Probates is an officer of the Supreme Court -- a public servant -- who is empowered by the Court Procedures Rules r 6250 and Schedule 5 Part 5.1 to make grants of probate or letters of administration on application. If the application is disputed, the Registrar will refuse to make the grant, and the applicant will have to apply to the court for an appropriate order: Court Procedures Rules r 3065 ff.

All documents in Probate proceedings including;

• applications for grants of representation and reseals;
• accounts;
• applications for commission; and so on

are filed at the Registrar's office. Other documents indexed and kept in the Probate Office include:

• deposited wills -- that is, wills deposited by living testators: Wills Act 1968 (ACT) ('the Wills Act') ss 32 and 33;
• applications for grants, and associated documents;
• grants and the relevant wills. After the grant the will is a public document, and so is the grant itself. Both are available for perusal by members of the public (Court Procedures Rules rr 3119, 3120, 2901, 2903).

Reseal -- where a grant of representation is made in another State or Territory, or in another Commonwealth country, the grant cannot be used in the ACT. However, the local court may recognise the foreign grant, and grant a "reseal" of that grant. This gives the personal representative full power to operate in the ACT.

Solicitor -- a legal practitioner who does legal work, dealing directly with the public. A solicitor will draft wills for a fee which varies somewhat from solicitor to solicitor, and will give professional advice on what the will could and should contain. The solicitor will usually be prepared to retain the will in safekeeping after it is drawn. Solicitors are generally unwilling to accept appointment as executor in a will unless the will contains a lucrative charging clause. It is not really satisfactory for a solicitor to draft a will appointing herself or himself executor and benefiting herself or himself with a charging clause.

A solicitor will be prepared to do the legal and practical work of administering estates.

Spouse - see "eligible partner" and "partner".

Stamp Duty -- a tax that will be imposed on transfer of land, shares and so on during your lifetime on a sliding scale up to 2.5 per cent. Transfer on death is exempt from Stamp Duty.

Tenancy in common (see too "joint tenancy") -- a form of co--ownership in which property is held in common with others but the principles contrast starkly from those which apply to "joint tenancy". The following principles apply to a tenancy in common.

• Tenants in common have shares in the property -- tenants in common have fixed undivided shares in the property. Tenants in common can have unequal shares (for example two-thirds to one and one-third to the other).
• There is no principle of "survivorship" for tenants in common -- in contrast with joint tenants the share of a deceased tenant in common passes to her or his beneficiaries under her or his will or intestacy and does not automatically pass to the surviving tenant or tenants in common.

The share belonging to a tenant in common becomes part of the estate of that tenant in common when he or she dies -- that is, a testator who is a tenant in common can leave her or his share by will or, if there is no will, the intestacy rules apply to the share that belonged to the tenant in common. Unlike a joint tenant, a tenant in common can deal with her or his share in the property by will.

• The principle applies to all property -- the principle of tenancy in common applies to personal property as well as real property -- it applies to furniture and bank accounts as well as to land.
• Interest of a tenant in common can be given by will -- each tenant in common can in her or his will leave their share to their own beneficiaries.
• When tenancy in common is used -- where a husband and wife purchase property together and the spouses want the property to be held equally, and they want the principle of survivorship to apply they usually have it registered in their names as joint tenants, particularly if there are no children of a previous relationship to consider.

Where partners contribute unequally to the purchase of a property, or they want to hold it in unequal shares, or they do not want the principle of survivorship to apply, it is common for them to register the property in their names as tenants in common. This is often the case where the partners are not married to each other, or if one or both partners have children from a previous relationship. The fact that they can own unequal shares in the property means that they can fix the proportions of their interests so as to reflect their respective contributions to the property, and they can give those shares by their own wills.Where property is given by will to people as a group (say, to the testator's children) it is usual for the property to be given to the group members as tenants in common rather than as joint tenants.

Testamentary disposition -- a provision in a will or codicil which instructs those who come after on how the property owned by the testator is to be divided.

Testate -- having left a will.

Testator -- a person (whether male or female) who makes or leaves a will.

Trust -- an enforceable obligation resting on a person who is owner of some particular property to deal with that property for the benefit of other persons (one of whom may be the trustee) or charitable objects. Trust beneficiaries are often minors or persons with a handicap. A testator can create a trust by will (to come into operation after the testator's death), or "inter vivos", that is, to come into operation while the person creating the trust is still alive.

Trustee -- a person who holds property on trust for another person or persons.

Trustee company -- Trustee companies are empowered by statute to administer estates and to draw wills. Although they often draw wills for free, they generally insist on being named as executor. Their charges for administering the estate may be high. They may specialise in larger estates.

Will -- a document which has legal force and gives instructions on how the testator's estate is to be distributed after his or her death. A will can appoint executors and testamentary guardians, give instructions on disposal of the body and create trusts.

Wills Act means the Wills Act 1968 (ACT).