Technical Terms in a Will

Testator: The person making the Will.

Testamentary capacity: Refers to the mental capacity of the testator to make a Will. The Testator must be of sound mind and at least 18 years of age.

Executor: The person appointed in a Will to manage the administration of the Testator’s estate. The executor must be 18 years of age, although does not need to have any formal qualification to perform this role.

Estate: All of the assets and liabilities of the Testator as at the date of death. As to what constitutes a Testator’s assets can be quite complex. For example, superannuation and life insurance policies do not necessarily form part of the estate. Property which is owned with another, as joint tenants, does not form part of the estate, neither does property belonging to a Trust or company, although monies owed to the deceased in a loan account of a trust or company and the shares owned by the deceased in a company do form part of the estate.

Administration of Estate: It is the Executor’s role to identify all assets and liabilities of the estate, collect the assets and pay the liabilities before distributing amongst the beneficiaries named in the Will.

Beneficiaries: The persons named in the Will who will receive a distribution from the Estate.

Death Duties: Are not currently paid in Queensland but may be payable in other states.

Intestacy: Occurs when a person dies without leaving a valid Will. Where this occurs a person is said to have died “intestate”. In these cases the assets are distributed in accordance with Schedule 2 of the Succession Act (Qld) depending upon the Testator’s circumstances at the time of death.

Family provision: A Testator’s spouse child, step-child or dependant may make an application to the Supreme Court for further provision to be made from the Testator’s estate even if they have already been provided for in the Will.

Spouse: Includes a husband, wife, de-facto partner or a former husband, wife or de-facto partner.

Child: Includes any biological child, step-child or adopted child of the Testator. The step-child ceases being a child upon the divorce of the Testator and the child’s parent.

Dependant: Any person who is being wholly or substantially maintained or supported by the Testator at the time of their death. This can include a parent of the Testator, a parent of a surviving child under the age of 18 years of a person.

Grant of Probate: The Supreme Court makes an Order that the Will is the last Will of the Testator. In a lot of cases a bank or financial institution will require a Grant of Probate before releasing monies to the Executor.

Letters of Administration: Where a person has died intestate or if there is a Will but no executor, an application is made to the Supreme Court for Letters of Administration which will allow for distribution of the Estate.

Waiting Periods: There are several waiting periods in the administration of the Estate:

  • The Death Certificate can take up to six weeks from the date of death to be issued;
  • Any person who has not been named in the Will and intends to make a claim on the Estate must give notice to the Executor within six months of the date of death;
  • For that reason it is recommended that the Estate is not distributed until nine months has passed from the date of death to ensure the Estate can meet payment of any claims;
  • Where an executor needs to apply for a Grant of Probate of Letters of Administration, notice of the intended application must be advertised at least 14 days before the application is filed in the Supreme Court;
  • A copy of the Notice must be given to the Public Trustee of Queensland seven days before filing the application in the Supreme Court.

Transmission Application: Where the Testator owned real estate it can be transferred by lodging a Transmission Application in the Titles Office.

Transmission Application by Personal Representative: This is usually done where it is intended the property be sold by the Executor as part of the administration of the Estate to meet debts and to pay out the entitlements of the beneficiaries.

Transmission Application for Registration as Devisee-Legatee: This is usually done where it is intended the property can be transferred to the beneficiary who has been named in the Will to receive that particular property.

Request to Record Death: This is done when real estate is held by the deceased as joint tenants with another person. By lodging the Record of Death the property is then owned solely by the surviving tenant.

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