Legal Terminology of Words Used When Someone Dies

These are the definitions of common words used when dealing with deceased estates.

Administrator

An administrator is similar to an executor.

An administrator applies to the Supreme Court for either:

• Grant of Letters of Administration (there is no Will); or
• Grant of Letters of Administration With Will Annexed (there is a Will with no executors).

If there is Will, then see 'Executor' and 'Probate'.

Codicil

A Will can also be amended by creating a document called a “codicil” (instead of creating a new Will).

A Codicil will have the words “codicil” on it and it will also reference the original Will.

Not everyone makes a codicil, so it’s not something you should expect to find.

The codicil will likely be kept near the Will, if there is one.

If there is a codicil, simply interpret the Will with the amendments in the Codicil.

Estate

The word “estate” is a collective reference to all of your loved one’s assets, money and property that is able to be given to the beneficiaries. In other words, ‘it’s part of the estate’.

Property owned by your loved one but not covered by the “estate”, does not go to the beneficiaries.

Executor

An executor is a person appointed under a valid Will to be responsible for:

• finalising a deceased person’s affairs; and
• distributing the assets to the beneficiaries named in the Will.

There can be one or more executors nominated.

There can also be back-up executors(s) nominated in case the first-mentioned executor(s) can’t act.

An executor has to be over 18 years of age at the time of death to be lawfully allowed to act.

Grant

There are 3 Types

A Grant refers to one of these three:

• Grant of Probate (there is a Will with executors who can act);
• Grant of Letters of Administration (there is no Will); or
• Grant of Letters of Administration With Will Annexed (there is a Will with no executors).

Who applies?

The appropriate person applies to the State Supreme Court for permission to deal with a deceased person’s assets and affairs.

• The executor of a Will applies for Probate.
• The next of kin applies to the court for Letters of Administration.
• One or some of the beneficiaries in the Will apply for Letters of Administration With Will Annexed

What Does it do?

Once a Grant has been approved and issued by the Supreme Court, the appropriate person can do anything the deceased person could do if they were alive. E.g open bank accounts, sell property, distribute money to beneficiaries, pay debts etc.

Letters of Administration

See definition of ‘Grants’

Letters of Administration With Will Annexed

See definition of ‘Grants’

Personal Representative

Personal Representative means the person representing a deceased estate.

If there is a Will, it will be the executors.

If there is no will (or no executors appointed under a Will) then it will be the administrators.

The Personal Representative is the person who has obtained a Grant.

Probate

See definition of ‘Grants’

Renunciation

It’s a special document that an executor signs to voluntarily step down from acting as executor.

The person is effectively ‘renouncing’ their rights to the position of executor.

Rules of Intestacy

This is the automatic way someone’s assets (or more correctly their ‘estate’) are divided among the surviving family if they die without a valid Will.

The manner of division depends which family are left.

The laws of intestacy vary from State to State.

Tenants in Common / Joint Tenants

There are 2 ways someone in Australia can own real estate jointly with another person:

• the first is as “joint tenants” and
• the second way is as “tenants in common”.

You can tell what type of ownership applies by conducting a certificate of title search at the Land Registry in the relevant State or Territory.

With “joint tenant” ownership, there is a special right called “right of survivorship” which applies. This means that a deceased’s share in that joint property will automatically pass to the other living joint owners (no matter what is in the Will or what the laws of intestacy say).

With “tenant in common” a deceased’s share in that joint property can pass to their beneficiaries (eg under a Will or the laws of intestacy). The right of survivorship does not apply.

Will

A Will is a legal document signed by a deceased person which sets out:

• who the executor is
• who are the beneficiaries (eg. the people or organisations receiving an inheritance under the Will)
• other optional information such as guardian for children under 18 and funeral wishes.