Administration of an Estate – This concerns the settlement of a deceased estate, whether testate or intestate.  The assets of a deceased are determined and appraised, the deceased’s debts are determined and paid, the amount of taxes calculated and paid, and the remaining assets distributed to the persons or entities entitled to them either by the terms of the deceased’s will or by the laws of intestacy under the Administration Act 1903.  Depending upon the property in the estate and the deceased’s will, there may be ongoing obligations.

Affidavit of Due Execution – Where there is legal doubt about the proper execution of a will, a deed of due execution may be sworn.

Beneficiary – a person or group who receive money, advantages, etc. under a will.

Caveat – A document that can be filed at the Probate Office to prevent an application for a Grant of Probate or Letters of Administration.

Codicil – A supplement to a will containing an addition or change to a will.

Contesting an unfair will – see “inheritance claim”.

Deceased estate – When a person dies, their assets and possessions are known as their estate (eg. land, shares, money, jewellery, cars). Technically, as long as these possessions were kept by the deceased, any property may form a part of the deceased estate.

Deed of Family Arrangement – Deeds of Family Arrangement are used to record changes agreed upon by the beneficiaries to the manner the estate is to be distributed under the will or inheritance laws.

Enduring Power of Attorney – An enduring power of attorney is a legal agreement that enables a person to appoint one or more trusted persons to make financial and/or property decisions on their behalf.

Executor or Executrix – Under a will one or more persons may be appointed to administer the will.  A male is an executor and a female is an executrix.

Grant of Probate – A Court Order which confirms that a will is valid and that the Executors are entitled to deal with the deceased’s property and debts.

Heir – A person who inherits or is entitled by law or by the terms of a will, to inherit the estate of deceased person.

Informal will – In WA, under section 32 of the Wills Act 1970, if a will has not been properly executed, the Supreme Court may treat the deceased’s will as being valid.

Insolvent estate – If the deceased had more debts than assets which form a part of their estate it is necessary to deal with the estate in a different way from that which operates where the deceased died financially solvent.  The insolvent estate is administered by a trustee in bankruptcy.

Joint tenants – Property (eg. land) can owned as “joint tenants” or “tenants in common”.  It is generally the case that people own their family home as joint tenants.  In a joint tenancy, when one of the joint tenants dies, that person’s interest in the property passes to the other joint tenant(s) automatically under the law.

Inheritance claim – In WA, a spouse, defacto spouse, former spouse, step-child, grandchild or parent may make an inheritance claim under the Family Provision Act 1972 if they wish to challenge the validity of the deceased’s will or codicil, or more generally to obtain a greater inheritance under the deceased’s will.

Inheritance dispute – See “inheritance claim”

Intestate or intestacy – When someone dies without a will, or the will does not deal with all of the deceased’s property.

Last will and testament – A will.  See “Will”.

Legal Personal Representative – The person who is responsible for the affairs of the deceased estate.  The person may be the Executor under a will, or the Administrator following a Grant of Letters of Administration.

Letters of Administration – In WA, when a person dies without a will or the will is invalid, an application is made to the Supreme Court of Western Australia for a Grant of Letters of Administration by the next-of-kin.  The assets of the deceased estate go to the next-of-kin according to a formula in the Administration Act 1903.

Legacy – An amount of money or property left to someone in a Will.

Movable and immovable property – Immovable property includes land and buildings, whilst all other property is usually regarded as movable property.  The distinction between movable and immovable property under the law can be complex.

Power of Attorney – An express written authority in proper form signed and witnessed according to law, by which one person appoints another to act on his or her behalf.

Probate – In WA, to obtain a Grant of Probate, an application must be filed with the Supreme Court of Western Australia in compliance with the Non-contentious Probate Rules 1967.  Probate is the process of registering a deceased person’s will in the Supreme Court so the named executor under the will can deal with the deceased person’s assets (e.g. property, bank accounts and shares) and administer them according to the will (or otherwise pursuant to a Deed of Family Arrangement).

Real property or realty – Property may be either “real property” (eg. land, building or a lease) or “personal property” (eg. shares, money, jewellery, car or a boat).

Requisition – In WA, where there is non-compliance with, or issues arising under the Non-contentious Probate Rules 1967, the Supreme Court of Western Australia may request further information or documents from the Executor / Executrix.

Reseal of Probate – Where the deceased died leaving assets situated in another State or Commonwealth country, a Grant of Probate or Letters of Administration may need to be issued by a Court of that jurisdiction.  If you have already obtained the Grant of Probate or Letters of Administration in another State or Country, then you will need to apply for the Grant of Probate to be “resealed”.

Revoking a will – The description given when a will is cancelled. A cancelled will is said to be revoked and is no longer valid once revoked.

Spouse – a person’s husband or wife.

Tenants in common – Property can owned as “joint tenants” or “tenants in common”.  If property is owned as tenants in common, when an owner dies that person’s interest is preserved and passes to their deceased estate.  If the deceased has a will, the property will be dealt with under the terms of the will.

Testamentary Capacity – The description given to the legal capacity that a person needs in order to make a valid will.  A person making a will must have the requisite mental capacity.

Testamentary Trust – A testamentary trust is established by a will.  A testamentary trust provides a greater amount of protection and control over the distribution of assets to the beneficiaries of the trust.  There are also tax benefits, especially in relation to beneficiaries under the age of 18.

Testator or Testatrix – A person who dies leaving a valid will.  A male is a testator and a female is a testatrix.

 Trustee – Once a Grant of Probate or Letters of Administration is made, the person in control of the deceased estate is known as the Trustee of the deceased estate.  The Trustee has legal duties under legislation and the common law.

Will – An official statement of what a person has decided should be done with their money and property after their death.

 

Disclaimer

All attempts have been made to provide accurate information. However, nothing contained herein should be relied upon as legal advice or legal authority. Nothing contained herein should be substituted for the advice of a competent solicitor.

 

Need assistance with a Grant of Probate or Letters of Administration?

The team of experts at Robson Hayes Legal can prepare the Court documents necessary for a Grant of Probate or Letters of Administration.  Call Robson Hayes Legal on (08) 9322 2256 or email us at contactus@probatewa.lawyer to discuss your probate and deceased estate issues.