Estate Planning: Glossary of Terms

At Murnane Legal, we want every client to fully understand the Estate Planning process. We help achieve this by speaking in normal language as much as possible and explaining legal terms as they arise.

With that in mind, here are some of the terms and words regularly used in Estate Planning:

Administrator

When someone dies without a will, an Administrator is appointed by the Supreme Court. It is the Administrators job to ‘administer’ the estate, which means they must distribute the assets. How these assets are distributed is guided by the ‘Intestacy Rules’, which are the rules that are used to guide what happens with an estate where no Will exists.

Advanced Care Directive

In Victoria, an Advance Care Directive is the only legally recognised document that a person can record their medical treatment preferences in. However, should a person lose decision making capacity, any written record of their values or medical preferences must be considered by their Medical Treatment Decision Maker.

Appointor

A person with powers under a Testamentary Trust which will include at least the right to appoint and remove a Trustee.

Attest

The process of signing a Will, in the presence of witnesses who also sign. This process serves to prove that the Will maker signed the Will.

Attestation Clause

The Attestation Clause states that the witnesses saw the Will maker sign the Will and that they signed in the presence of the Will maker and each other. It is vital that witnesses and the Will maker physically see each other putting pen to paper.

Beneficiary

A person who is given a gift in a Will.

In a Testamentary Trust, a beneficiary is a person:

• Who has a right to receive a benefit (subject to conditions), or

• Who has a mere expectation to be considered for a benefit by the Trustee, where the Trustee has a discretion.

Bequest

The process of gifting Personal Property in a Will.

Blended Family

A family consisting of a couple, the children they have had together, and their children that either one or both have from previous relationships.

Certified Copy

A certified copy of an original document is a copy that has been verified as being a true copy of an original document. This verification is done by a person who is authorised to certify copies of original documents such as a lawyer or a Justice of the Peace. 

Child

A biological or adopted child of a person. Wills drafted by Murnane Legal contain special conditions of the word ‘child’ in order to deliberately include or exclude types of children.

Codicil

Any document which has the legal effect of adding to or amending the terms of an existing Will. The same legal requirements for the Execution of Wills apply to the Execution of Codicils.

Creditor

A person to who a debt is owing.

De facto relationship

A relationship between two adults living together as a couple but not married to each other or related by family.

Death Certificate

A Death Certificate is a document issued by Births Deaths and Marriages Victoria that is proof of the deceased’s death. There are two types of Death Certificates available in Victoria:

• Death certificate

• Death certificate – cause of death.

 For Probate, ‘Letters of Administration’ or ‘Letters of Administration with the Will Annexed’ applications to the Supreme Court of Victoria, a certified copy of the ‘Death certificate – cause of death’ is required.

Enduring Power of Attorney

See ‘Power of Attorney’

Estate

Assets that belonged to the deceased.

Executor

A person appointed in a Will to carry out the provisions of the Will.

Execution of a Will

Execution of a Will is the technical term for signing a Will and making it legal.

Ex-nuptial child

A child born to parents who are not married to each other.

Grant of Probate

A Grant of Probate is a legal document (sealed by the Supreme Court) that recognises someone’s authority to deal with the Estate of a person who has passed away.

Quite often, individual’s or institutions holding the Estate’s assets will request to see a certified copy of the Grant of Probate before releasing the Estate’s assets to the Executor of the Estate.

In Victoria, the Grant of Probate has moved from a hard copy to a digital copy format. An Executor can now provide the Grant of Probate’s individual identity number to any institution or individual that requires sighting of the Grant of Probate.

Grant of Letters of Administration

A ‘Grant of Letters of Administration’ is a legal document usually used when the deceased did not leave a Will, or the original Will cannot be located.

Intestacy rules

The rules that are used to decide where an estate will go when no Will has been made, or where the Will does not dispose of all of the estate. The Administration and Probate and Other Acts Amendment (Succession and Related Matters) Act 2017 sets out how the property is shared out.

The rules are complicated and change, depending on:

• the value of the estate

• the type and number of family members the deceased had.

Intestate

Having died without leaving a Will.

Joint Tenancy

A form of co-ownership where property is owned by more than one person. In joint tenancy, when one co-owner dies, the property automatically passes to the other co-owner regardless of what the Will says. This is the favoured type of ownership for couples.

Legacy

A gift of personal property.

Letters of Administration

The Letters of Administration grant the legal authority for an Administrator to manage and distribute the deceased estate.

Letters of Administration with the Will Annexed

The Letters of Administration with the Will Annexed grant the legal authority for an Administrator to manage and distribute the deceased estate where a Will was left but no Executor was appointed, or the sole Executor died before the Will-maker or renounced probate.

Letter of Wishes

A Letter of Wishes is often prepared in conjunction with the preparation of an Estate Plan.  The Letter of Wishes is not a legally binding document, however, it is a document that is intended to provide you with the ability to give guidance to the Executor of your Estate.

Medical Treatment Decision Maker

Should you experience illness or injury, your Medical Treatment Decision Maker is someone you’ve appointed to make medical treatment decisions (either temporarily or permanently) on your behalf.

Mutual Wills

A form of Will made by two or more people where the people have agreed to not make changes to the whole of their Will (or part of their Will) without the consent of the other person or people. Their intention is to maintain their Will (or the relevant part of the Will) even after the death of one of them. Mutual Wills are used in rare cases and usually not recommended.  

Power of Attorney

An enduring Power of Attorney is a legal document that lets you appoint someone to make decisions about personal matters (such as where you live) or financial matters (such as paying bills) or both. This person is called an attorney. The power endures - or continues - if and when you are unable to make decisions. 

You can limit the power to cover only specific matters, and you can choose when the powers start. Your attorney cannot make medical treatment decisions for you unless they are also your Medical Treatment Decision Maker.

You can make an Enduring Power of Attorney if you are aged 18 years or older and have decision making capacity to do so.

Probate

A court order by the Supreme Court confirming the validity of a Will. It gives the executor permission to deal with the estate.

Protector

A Protector is a person appointed under the Testamentary Trust to direct or restrain the trustees in relation to their administration of the trust.

Tenants in common

A form of co-ownership where property is held in common with others but each has a separate share. The share of a deceased person passes to their beneficiaries and not to surviving co-owners.

Testamentary Disposition

A valid Will or other testamentary document stating how property is to be passed on.

Testamentary Trust

A Testamentary Trust is a trust established under a valid Will after the Will maker has died. In some instances, the Will may specify that a number of Testamentary Trusts need to be set up. A Testamentary Trust functions in a similar way to a discretionary family trust, with certain provisions of the Will operating like a trust deed.

Testate

Having died and left a Will.

Testator

A person who has died and left a Will.

Trustee

A person who holds property in trust for another person.

VCAT

The Victorian Civil and Administrative Tribunal. This tribunal may be asked to appoint an Administrator or guardian to help you if you lose capacity or are unable to make decisions for yourself and do not have a Power of Attorney.

Glossary Created by Mark Murnane

DISCLAIMER: This article is provided for general information purposes only. It does not constitute specific legal advice or opinion. Although our aim is to provide you with as accurate information as possible, you should not act or rely upon the information in this article without seeking the advice of an experienced lawyer who specialises in the particular area of law relevant to your inquiry. Please do not to hesitate to contact Murnane Legal to make further inquiries or to make an appointment to discuss the specifics of your situation.