Below is a list of commonly used terminology that it pays to understand in when drafting your Will, pre-nuptial or co-habitation agreement, divorce settlement or family trust.
As with most things in life that involve love and money, it pays to understand the details, as far too often it is the expectations or details that we leave un-written or un-stated that end of biting us hard when we least expect it.
The below list of related terms are by no means exhaustive, but they are a good starting point for anyone contemplating either beginning, ending or clarifying a important relationship that either involves us directly, or involves someone we care deeply about.
Appointor
The person who has the power to appoint and remove the trustee of a trust.
Beneficiary
A person who receives a benefit under a will, or from a trust.
Codicil
A document which amends a will.
Deceased estate
This is made up of all of the assets owned by the deceased when he/she dies.
De facto spouse
A person will be a de facto spouse of a testator if they are not legally married and are living together as a couple on a genuine domestic basis.
Executor
The person appointed by the will to administer the deceased estate. The executor holds all of the assets of the deceased until they are distributed in accordance with the will.
If the assets are to pass to a testamentary discretionary trust the executor passes control of the assets to the trustee, although normally the executor and trustee will be the same.
Family provision legislation
This legislation gives certain eligible people the right to claim a share of the deceased estate. The purpose of this legislation is to ensure that families and other dependents of the deceased are adequately cared for out of the deceased estate.
Guardian
The persons nominated by a will to care for infant children if both parents die. While a nomination of guardian under a will is given significant weight, the appointment can be reviewed by the Family Court, on application from a concerned interested party.
Intestate
A person who dies without a will is called an intestate, and an intestacy is created by their failure to dispose of their assets. A partial intestacy can occur when some but not all of the assets are disposed of by the will.
Joint tenancy
This occurs where assets are held jointly by two or more people. Upon the death of one of the joint tenants, their share of the property passes automatically to the other joint tenants (the right of survivorship) regardless of what their will states. The other ownership structure for jointly owned assets is tenants in common.
Personal representative
General term for ‘executor’ and ‘trustee’ or the person appointed to administer the estate. Often the term ‘legal personal representative’ (LPR) is used.
Probate
An order from the Supreme Court which gives the executor authority to administer the estate in accordance with the terms of the will.
Spouse
A person’s spouse is their husband or wife. For succession law purposes, a person whose marriage has been dissolved will no longer be a spouse.
Tenancy in common
This occurs where assets are held by two or more people, in equal or unequal shares. Tenants in common can sell or otherwise dispose of their share of the property. If an owner dies their share of the property is distributed according to their will. The other ownership structure for jointly owned assets is as joint tenants.
Testamentary discretionary trust
A testamentary discretionary trust (TDT) is a trust established by someone’s will and does not come into effect until their death.
Testator
The person who makes the will.
Trustee
The person who is the legal owner of the property in the trust. The trustee holds and administers the property of the trust for the benefit of the beneficiaries, in accordance with the terms of the trust once distributed by the executor. Often the executor and trustee are the same.
Trust property
The property that is held by the trustee of the trust, in accordance with the provisions of the trust deed. If the trust is a testamentary discretionary trust, the provisions of the trust deed are set out under the will.
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