Administrator

A person appointed by the court to manage the assets and liabilities of a person who has died without making a valid will.

Administration of estate

The process of gathering an estate’s assets, paying the deceased’s debts and distributing the remaining assets.

Affidavit

A written statement, confirmed by oath or affirmation, for use as evidence in court.

Beneficiary

A person (or charity) who receives a gift of benefit under an estate, trust or insurance policy.

Binding Death Benefit Nomination

A binding death benefit nomination (BDBN) is a legally binding nomination that allows a super fund member to advise their fund about who is to receive their death benefits. A binding nomination is binding on the superannuation trustee, which means they are unable to use their discretion when paying death benefits to the beneficiaries of a deceased member. Instead, trustees must pay the member’s superannuation balance in accordance with their nomination.

A standard BDBN expires three (3) years after the date it was completed. This is because most people are not as consistent at updating their superannuation nominations as they are at updating their Wills. This can risk the member’s superannuation balance not being paid in accordance with their wishes and relationships at the time of their death. However, some funds have recently allowed members to put in place a non-lapsing binding death benefit nomination. This means that the nomination never expires and remains binding.

Caveat

A document lodged in the Supreme Court that will stop any application for a grant of probate or letters of administration from progressing until the question of capacity to make the will is determined by a judge.

Child

For the purposes of making an FPA in Queensland, a child is any biological child, stepchild or adopted child of the deceased person (regardless of their age).

Co-executor

A person who serves jointly with another person in carrying out the terms of a will.

Codicil

An additional or supplementary document, signed in the same formal way as a will, that explains, modifies or revokes all or part of a will.

Constructive Trust

A constructive trust is created to make up for a situation where there is unjust enrichment. This happens if someone has possession of property (money, real estate, or other assets) that they shouldn’t have because they obtained it unfairly through fraud or breach of a fiduciary duty.

Dependant

A person who relied on the deceased for financial support. For the purpose of making an FPA in Queensland, this includes any parent or other child (such as a foster child or grandchild) under the age of eighteen years, or any ex-spouse if they are the other parent to a child of the deceased under eighteen years – but only if those people were wholly or substantially financially supported by the deceased person at the time of their death. See separate definition for ‘superannuation dependant’ below.

Eligible applicant

For the purposes of making an FPA in Queensland, this is a spouse, child or dependant of the deceased.

Enduring Power of Attorney (EPOA)

An enduring power of attorney allows a person (the principal) to appoint someone they trust (an attorney) to make decisions about personal (including health) matters and/or financial matters for them.

Estate

All of the assets owned by the deceased person at their death.

Executor

A person or institution appointed by the willmaker to carry out the terms of their will.

Exhibit

A document produced to the court, referenced in and then attached to an affidavit.

Family provision application

An application to the court, by an eligible applicant, to receive a greater benefit under the will than has been provided for them by the willmaker (or under the intestacy formula).

Fiduciary duty

The legal duty to act in the best interests of the beneficiary.

FPA

Family provision application.

Grant or grant of representation

A document issued by a court to prove the legal authority of the person entitled to deal with a deceased person’s estate (called the personal representative).

Informal will

A document that states the testamentary intentions of a deceased person, but which has not been signed in accordance with the formal requirements for a valid will.

Intestacy

A descriptor for what happens when someone dies without a will.

Intestate estate

Any part of the deceased’s estate not effectively disposed of by will.

Issue

All of a person’s lineal descendants, including their children.

Joint Tenancy

The holding of an estate or property jointly by two or more parties, the share of each passing to the other or others on death.

Letters of administration

A document issued by a court, appointing an administrator to manage the assets and liabilities of the estate of the deceased in certain situations. This might be ‘on intestacy’ (where there is no will) or ‘with the will annexed’ (if there is a will but no named executor wishes to apply for probate.)

Mutual Wills

A mutual will (or ‘contractual mirror’ will) is mutually binding such that following the first death, the survivor is constrained in his or her ability to dispose of his or her property by the agreement he or she made with the deceased.

Non-Binding Death Benefit Nomination

A non-binding death benefit nomination (NDBN) is similar to a binding death benefit nomination in that it allows a super fund member to advise their fund about who they would like to receive their superannuation death benefits when they die. However, a non-binding death benefit nomination is not legally binding on the superannuation trustee. It instead allows a trustee to use their discretion when paying death benefits to the beneficiaries of a deceased member, by taking into consideration the member’s relationships at the time of their death. Whilst the trustee does ultimately decide who should receive the death benefits, if a member has completed a non-binding death benefit nomination, most of the time a superannuation trustee will also take into account who the deceased member nominated to receive their superannuation balance when they died.

Personal representative

The executor or administrator for the estate of a deceased person.

Probate

A document issued by a court, recognising one or more executors named in a will as authorised to manage the assets and liabilities of the estate.

Probate registrar

The officer of the probate registry who is appointed to deal only with matters relating to wills and estates.

Probate registry

A segment of the Supreme Court registry that deals only with handling matters relating to wills and estates.

Public trustee

The state government office established to provide trustee, estate and administration services, particularly where there is no-one else willing or able to act.

Residuary estate

That portion of the estate that is not specifically gifted to someone else in the will or specifically payable to a person on intestacy.

Self-Managed Superannuation Fund (SMSF)

Self-managed super funds are a form of trust where the members are usually also the trustees. This means the members of the SMSF run it for their benefit and are responsible for complying with the relevant super and tax laws.

Solemn form

A pronouncement that a court is satisfied that a will was made with the requisite testamentary capacity, made after a caveat has been filed challenging the validity of the will.

Spouse

For the purposes of making an FPA in Queensland, a husband or wife (married or registered) or a de facto partner (heterosexual or same sex), as long as at the time of death they had been living with the deceased in a genuine domestic relationship for at least two years.

Superannuation dependant

Includes a spouse (heterosexual, same sex or de facto), children of any age, anyone financially dependent on the member, anyone in an ‘interdependency relationship’ with the member, or the legal member’s personal representative.

Superannuation trustee

In relation to any superannuation fund, the person or entity that manages the superannuation fund.

Tenants in Common

The holding of a property by two or more people in specific/defined shares (or fractions) that can be equal or unequal. Each tenant in common can sell their shares in the property or give them away in a will (there is no right of survivorship).

Testamentary trust

A trust created by a Will that does not come into effect until the death of the willmaker.

Will

A legal document by which a willmaker expresses their wishes about how their property is to be distributed at death, and names one or more people as the executor, to manage the estate until its final distribution.

We have tried to keep legal jargon to a minimum on this website and in our blogs, but we have included an easy to understand glossary to help you better understand the legal terms you might see along the way.

Zinta Harris

Meet Zinta

Founder and Principal of Resolve Estate Law. Accredited Specialist Business Law (Qld) and Accredited Specialist Succession Law (Qld). TEP Society of Trust and Estate Practitioners.

I am Zinta Harris. I live in Brisbane, Australia with my husband of 25 years, Craig (known by most as Harry) and our two children Teja and Zigi. I am a specialist wills and estates lawyer by day and inspiration seeker by night. I help Australian families navigate the legal fallout after the loss of a loved one in a calm and compassionate way.

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