Australian Wills and Estates

Ailira is an artificially intelligent legal assistant that is here to help you with your legal problems. You chat with her just as you would a human lawyer. You can ask her questions, and she may ask you questions back to help guide you to helpful legal information. She can help you create documents, and if need be speak with a human lawyer to review those documents and information provided to you.

Ailira users  get their legal matters managed at approximately 25% of the cost of a lawyer and usually within 15-20 minutes too!

Ailira generates a simple Will for $150, or a more complex one for $440

And remember, at any point you’d like to talk to a human lawyer Ailira can help you with that too.

How to create a Will through Ailira

Click “Create a Will” and answer the questions. It should take 15-20 minutes.

Is Ailira simple?

Ailira is really simple and easy to use. However, there is actually some really powerful artificial intelligence and legal documentation happening that tailors the experience to suit your needs.

What do I need?

  1. Decide who will be your beneficiary/s. A beneficiary is a person to whom you are leaving your estate.

    For each beneficiary you need:

    • Their full name, address, date of birth, and occupation
  1. Decide who will be your executor/s. An executor is a person who will have the responsibility to execute your will.

    For each executor you need:

    • Their full name, address, date of birth, and occupation
  1. You will also need:
    • Your email address, to which Ailira will send you your new Will
    • Decide any other wishes you may have eg specific gifts, whether you will be buried or cremated
    • A credit card to pay for your Will (we are a cashless office)

What if I have a question?

Easy, just ask Ailira!

She can provide free information that should hopefully answer any questions you might have about creating a Will.

If Ailira can’t answer your question, or if you need more help, we can arrange a meeting with a lawyer to assist you.

Is this legal advice?

No, robots are not allowed to give legal advice – yet!

Ailira can only provide general legal information, however it may not be suitable to your circumstances.

Ailira generates a template document based on the information you provide.

If you would like legal advice you can ask Ailira to “speak with a lawyer”, and you can make an appointment with a lawyer with a current practising certificate.

Do I need a will?

If you die without making a Will, you die intestate. In this situation, your assets will be distributed according to a statutory formula, not according to your specific wishes. This could even mean that the Government gets your estate.

The person or persons who will assume the responsibility for distributing your assets in this way will be those who have priority to do so under legislation.

Therefore, this decision will also be one that you do not make yourself. The Public Trustee might be appointed and there may be more fees charged than an executor that you choose.

Which Will is suitable for me?

Ailira can generate a Simple Will for people who have simple affairs.

Ailira can start you with a Complex Will, and will book you in with a lawyer to review and discuss your needs and if appropriate finalise the Will.

A Complex Will should be used if any of the following apply:

  • You have a Family Trust or Self-Managed Superannuation Fund.
  • You are giving one of your beneficiaries an inheritance of more than $500k and you want them to receive their inheritance in a tax effective way.
  • You are cutting out (or giving only a reduced proportion to) a child, spouse or dependent.
  • You have a child, spouse or dependent who is not good with money or who has a drug or alcohol problem.
  • You have a child, spouse or dependent who might marry someone who is a ‘gold-digger’, who is bad with money or who has a drug or alcohol problem.
  • You want to set up a trust for someone with a disability.
  • You want to make sure that your superannuation is passed on in the most tax effective way.
  • You, or a company or trust that you own, are the part owner of a business.

Why don’t I just write a Will myself or get a Post Office kit?

Many people do! But most people who buy a Post Office Will kit never finish it. This is because there are actually quite a number of questions asked, and unfamiliar terms to look up and decisions to make, and most people start it and then put it away in their bottom drawer without finishing it.

There is also a risk from not having the legal knowledge on how to draft a Will. Ordinary words like ‘trust’ ‘property’ and ‘benefit’ can have very specific meanings in law, and it is very easy for someone writing their own Will to make a mistake, that later causes thousands of dollars of legal fees in disputes over its legal meaning.

Ailira is able to answer the questions that you need answered in order to be able to properly decide how to generate your Will. Ailira also will not let you use legal terms inappropriately, so you simply cannot make the kind of mistakes you could with a blank piece of paper or Post Office Will kit.

How can the office staff help me in the law firm without lawyers?

Office staff are here to help with making appointments, assisting with technical difficulties, explaining how Ailira works or witnessing documents which don’t require a solicitor to witness.

How can you operate without lawyers?

By providing you with as much general information as we can for free, we think that Ailira can help you complete general legal forms so you can make your own decisions.

That being said, sometimes it is important to speak to a lawyer to get advice in relation to your specific circumstances.

If you need to speak to a lawyer, we can refer you to a lawyer from Cartland Law Pty Ltd (based in South Australia) or another lawyer as appropriate.

What happens if I have a legal matter that Ailira can’t help with?

Ailira can still help to gather background facts and information which can be referred on to a lawyer to assist you.

This will hopefully cut down on the time it takes for the lawyer to consider your matter saving you both time and money!

Video – How to Create a Will

Law Firm Without Lawyers

Ailira by Cartland Tech

Northern Territory (AU) Office Contact Details:
Ph: (08) 79697112
Email: ailira@cartlandlaw.com

Address:
Shop T39B
Coolalinga Central
445 Stuart Highway Northern Territory

Location of store and surrounding shop fronts
Heading outbound off Stuart Highway
In the Coolalinga shopping complex (with kmart, coles, chemist warehouse etc)
Directly opposite The Flank Bar & Grill

Price
$150 per person per Will

Office Opening Hours
Mon-     Closed
Tues-     9:00am to 2:00pm
Wed-     9:00am to 2:00pm
Thurs-   9:00am to 2:00pm
Fri-         9:00am to 2:00pm
Sat-        By Appointment only
Sun-       Closed

 

Will Questions

Who can be an executor?

An Individual,  a Public Trustee, or trustee companies established by statute to act as executors may be an executor of an estate.

What should I consider when selecting an executor?

The choice of an executor is one of the most important decisions when making a Will. When selecting an executor you should consider the following:

  • Will your proposed executor accept the appointment?
  • Is your executor likely to be alive and legally competent at your death?
  • Is a familiarity with your family circumstances important?
  • Is it preferable that the executor is independent of your family group or vice versa?
  • Does your executor have the requisite skills that will allow them to manage your affairs after your death?
  • Should you appoint Public Trustee or a trustee company as an executor?
  • Should you appoint a solicitor, accountant or some other professional person as an executor?
  • Do you believe that your executor will act independently and impartially in the discharge of his or her duties?
  • Do you think that your executor will discharge his or her duties honestly and prudently?
  • Should you appoint more than one primary executor?
  • Should you appoint substitute executors in case one or both of your primary executors is unable or unwilling to act as an executor?

Who should I appoint as an executor?

It is far more usual than not for a spouse to be appointed as the sole executor in the first instance, although this situation changes the older people get, for obvious reasons. Apart from a spouse, who you may appoint as your executor depends on your personal circumstances and will vary from case to case.

However, the following may assist you:

You will be more likely to appoint a family member the more:

  • that person is respected and trusted by you and, preferably but not essentially, your (other) beneficiaries;
  • competent that person is to perform the duties of an executor;
  • likely that person is to be alive or otherwise capable of acting as an executor at your death;
  • harmonious your family situation is;
  • uncomplicated and straightforward your estate is likely to be (noting that your executor(s) can always obtain professional advice if and when required);
  • unlikely it is that there will be a challenge against your estate.
  • You might be more likely to choose Public Trustee/a trustee company over an individual if:
  • you have no family members, friend(s) or trusted advisor(s) who are suitable for the role;
  • your family is likely to be divided over the administration of your estate;
  • your estate is relatively complicated (noting again that your executor(s) can always obtain professional advice if and when required);
  • the administration of your estate is likely to continue for a significant length of time (if, for example, there are young children who are beneficiaries) and you are concerned that your executor(s) may not live to complete the administration of your estate;
  • you simply wish to have an independent entity administering your estate;
  • you are not concerned that the cost of administering your estate is likely to be greater.

Should I choose more than one executor?

One executor is all that is required by the Probate Court to obtain probate. However, willmakers often prefer to have more than one executor for their own reasons.

The downside of choosing more than one executor is that, with more than one executor, there is the possibility of disputation, even stalemate, between those executors, the resolution of which may be time consuming and costly, in particular if a court order is required.

A downside of choosing only one executor is that, should that executor be unable or unwilling to act at your death, there is no other person in place who can act. This difficulty can be overcome by choosing one primary executor and a secondary executor who will act only if the primary executor cannot or will not act.

Some people feel uncomfortable appointing only one executor, particularly if that person is also a beneficiary, because they are concerned that that executor may favour themselves or others over other beneficiaries. If this concern exists, it is appropriate to ask whether this person should act as an executor in the first place. Having trust in your executor to do the right thing is critical. In any event, the executor is duty bound to act in the best interests of all beneficiaries. If an executor breaches those duties, he or she can be called to account for doing so.

The default position is to nominate only one primary executor and one substitute executor unless there is a good reason to appoint more than one primary or substitute executor. As to what constitutes a “good reason”, this is often a value judgement in each case. If the default position is to apply, consideration needs to be given to securing other assets, such as superannuation death benefits and assets in family trusts.

What does my executor do if I have a Self-Managed Super Fund or Family Trust?

If you have a self-managed superannuation fund, your executor may become the trustee of that fund on your death. If so, your executor may distribute assets from that fund directly to themselves, leading to them attaining a much larger share of your assets than other beneficiaries.

Provided that the trust deed of the self-managed superannuation fund permits it, this difficulty can be overcome by you making a written binding nomination requiring the trustee of that fund to distribute your superannuation death benefits as you direct. Your sole executor would therefore, in this circumstance, have no discretion in this regard.

It is also important to give consideration to assets in a family trust, which assets do not form part of a deceased estate. In this context, it is important to deal with the issues of who will be the trustee and appointor of that trust after your death. Specific provisions in the will can overcome concerns about a sole executor making decisions with respect to trust assets which may benefit them to the detriment of others.

Of course, it is sometimes difficult to appoint only one executor when there are others who could equally be considered for that role. This happens most frequently with parents with more than one child, particularly in blended families.

If you have a Self-Managed Superannuation Fund or Family Trust it is important to see a solicitor when doing your Will.

You should select a Complex Will in Ailira.

What is the difference between an executor and a trustee?

In a will, the executor and trustee are most often the same person. The executor ensures your wishes are carried out in accordance with your will. The trustee looks after the estate assets on behalf of the beneficiaries of the will, sometimes in trusts that continue after the administration of the will has been completed (such as for infant beneficiaries until they reach a certain age).

What tasks will an executor carry out?

The executor named in your will must carry out the following tasks:

  • Settle any outstanding debts
  • Collect any money owing to you or other income
  • Where required, obtain probate of the will
  • Make arrangements to claim any life insurance you may have had
  • Arrange for any assets to be sold, if required
  • Distribute the assets as per your instructions in your will

Do I need a will?

Everybody over 18 years of age who has, or may have at their death, assets of any substance should make a will. If you die without making a will, you will die intestate and your estate will be divided according to a statutory formula. This may not be consistent with how you would like your estate to be left.

It is of particular importance to have a Will if:

  • you want to leave particular assets to particular people;
  • you want to leave particular sums of money to particular people or charities;
  • you want to ensure that certain people will receive, and perhaps that others will not receive, your residuary estate after your death;
  • your personal situation is complex (for example, you have children from previous relationships or children with disabilities and / or other significant life issues) and / or you want to engage in more complex estate planning (such as a life interest, a right to occupy or the maintenance of a particular asset);
  • you want to appoint a person of your choosing to act as your executor;
  • your estate could benefit from certain tax planning measures (such as testamentary discretionary trusts and / or capital gains tax planning);
  • you have certain requirements with respect to the disposal of your body after your death and your funeral arrangements generally;
  • you would like to nominate someone in particular to be the guardian of your infant children after your death;
  • you are the appointor of a family trust and you wish to pass that power of appointment on to another.

What happens to my Will if I get divorced?

A Will you made before becoming divorced will be valid at your death but it will be read as if your divorced spouse had died before you, unless you specify otherwise in your Will.

What happens to my Will if I get married?

Unless you specify in your Will that it has been executed in anticipation of your marriage, your marriage will invalidate any previous Will you have made.

How often should I review my will?

You may change your Will as often as you wish. It is wise to review your Will regularly (say, every three years), but in particular when your personal circumstances change, whenever that may be.

Events that will or might require changing your Will include:

  • your engagement or marriage;
  • the death of a beneficiary or an executor;
  • the birth of a child or grandchild;
  • a substantial change, either positive or negative, in your financial circumstances;
  • a substantial change in the mix of your personal assets (such as the sale of a business interest or the family home);
  • the change in the personal circumstances of a beneficiary, such as a marriage (particularly if problematic), a divorce, an estrangement with you or the development of mental illness, alcoholism or drug addiction;
  • taking on different employment, becoming unemployed or retiring;
  • moving assets overseas;
  • winding up a family trust;
  • moving into the pension phase with respect to superannuation;
  • beginning to engage in a high risk activity;
  • beginning to suffer from a medical condition that will have a significant effect on your life and, or, that may hasten death.

Why is obtaining probate necessary?

Probate is necessary when the executor needs to prove to a third party that he or she is lawfully authorised to administer the estate.

Probate is most commonly obtained because an entity holding an asset (such as a bank or creditor) requires evidence that they are dealing with the legal personal representative of the estate. If an asset is handed over to the wrong person, the person handing over the asset could be held liable. However, banks will generally release monies in accounts provided it does not exceed a certain threshold.

Probate is also required by bodies responsible for the registration of assets, such as the Lands Titles Office with respect to land.

If there is a dispute regarding the will or the estate of the deceased generally, probate will also be required.

However, probate may not be required if assets can be called in and transferred to beneficiaries without producing probate. Probate will also not be required when property (land, bank accounts, shares, etc.) is held in joint names as the property will automatically transfer in law to the surviving joint owner upon the death of the other joint owner, although some steps may need to be taken to practically effect that transfer.

At times, such as when a will is challenged for authenticity or because there are concerns about the testamentary capacity of the willmaker, the process can become very complicated and drawn-out.

Probate provides the executor with certain legal protections in administering the deceased estate. Even if a person is named as the executor in a will, that person must be careful as to how much he or she does with the deceased estate before receiving probate. It may be, for example, that a new will surfaces, in which case the executor of the previous well may be at risk if what he or she has done prejudices the administration of the estate in accordance with the newly uncovered will.

How hard is it to obtain probate?

Generally, obtaining probate is not a difficult process for a legal practitioner with experience in the area. However, at times, such as when a will is challenged for authenticity or because there are concerns about the testamentary capacity of the willmaker, the process can become very complicated and drawn-out.

For the layperson, obtaining probate can be problematic, particularly if there is any unusual issue needs to be dealt with. A person wishing to do so may find assistance on the various relevant court websites.

To whom is an application for probate made?

To the Probate Court, which is a division of the Supreme Court.

What are the advantages of a testamentary discretionary trust?

All willmakers should consider a testamentary discretionary trust, especially if they have young children or significant assets.

The potential benefits of using such trusts include:

  • the possible protection of inherited assets in the event that a beneficiary becomes bankrupt;
  • the possible exclusion of inherited assets from a property settlement in the event of a marriage or de facto relationship break down;
  • separating the control of assets from a beneficiary who is unable to properly manage his or her own affairs (as a result of an intellectual incapacity, drug addiction, gambling addiction, etc.) or who may be subject to undue spousal pressure;
  • taxation advantages arising from the ability to split income amongst the family group, particularly if there are infant beneficiaries, because they will be taxed as adults on such distributions (unlike inter vivos trusts [link to inter vivos definition in Estate Planning Glossary], where infant children are taxed at penalty tax rates);
  • long-term protection for infant and intellectually disabled children;
  • being able to distribute unequally amongst beneficiaries, for example making a greater distribution to a beneficiary with special needs than to a spendthrift beneficiary;
  • creating multiple testamentary discretionary trusts, each tailored to the needs of their intended beneficiaries;
  • the long-term maintenance of critical assets for many generations along the willmaker’s bloodline.

What are the disadvantages of a testamentary discretionary trust?

The creation of a testamentary discretionary trust Will is generally more expensive, particularly when drafted by a solicitor. Trustee companies may draft a testamentary trust Will on a cheaper basis if they are going to be the trustee of the testamentary trust created by the Will they are drafting, for which service they will, of course, charge a fee. This will, therefore, ultimately be an additional cost with respect to the operation of the testamentary trust.

A testamentary trust will be a separate entity and will therefore pay tax on that basis. Therefore, there will be accounting fees associated with the operation of a testamentary trust that might not otherwise be occurred.

Investment in the management of the monies in the testamentary trust might also incur a fee, although one might expect that these assets might need to be managed whether they are in the trust or owned outright.

One cannot add external capital to a testamentary trust over and above that which was placed in the testamentary trust as a result of the operation of the will. However, income earned by the trust can be capitalised in the trust (there may be taxation implications in doing this) and the trust can borrow money.

As with all trusts, they can often become unwieldy and difficult to manage with the passing generations.

Asset protection through a testamentary discretionary trust

People in high-risk occupations such as lawyers, doctors, business owners, and financial advisers, may have put in place asset protection strategies that might be threatened by an inheritance. Such strategies include separating the high risk individual from assets that might otherwise be made available to creditors in the event of a bankruptcy. So, for example, the matrimonial home may be put into the hands of a spouse who is not at risk.

For obvious reasons, such high risk people would probably prefer not to receive inherited assets in their own name.

Who should be the beneficiaries under a Testamentary Discretionary Trust?

This is a matter of personal choice, but often a willmaker will chose a more limited range of beneficiaries in a testamentary discretionary trust than they would in an inter vivos discretionary trust (made “during the course of life”). The beneficiaries entitled to the capital of the trust fund will generally be close family members of the willmaker. Income beneficiaries may also include spouses or wider family members of the willmaker. This is done to ensure, as far as possible, the continuing ownership of the willmaker’s estate by his or her lineal descendants. These trusts are sometimes called lineal descendant testamentary discretionary trusts.

Having said this, there is no legal reason why the beneficiaries of a testamentary discretionary trust should not be as wide as an inter vivos discretionary trust.

The trust deed of a testamentary discretionary trust may strictly control the ownership and management of the trust fund, particularly certain crucial assets, so as to ensure their continuing development and to benefit later generations. These testamentary discretionary trusts are sometimes called bloodline trusts.

What is the difference between an inter vivos discretionary trust and a testamentary discretionary trust?

A testamentary discretionary trust is similar to a trust commonly known as a family discretionary trust or an inter vivos discretionary trust. Inter vivos simply means made “during the course of life”. Therefore, an inter vivos discretionary trust is a trust made during life, and a testamentary discretionary trust is a trust made in a testamentary document such as a will which becomes effective on one’s death.

Signing Your Will

A Will won’t be valid until properly executed (signed).

Who needs to execute a Will?

You and two Witnesses will need to be present at the same time to execute your Will. All three of you will need to sign each page.

Who is the Testator?

The person who is making the Will is called the Testator. As the Testator you need to sign each page at the space for the Testator to sign.

Who can be my Witnesses?

There are specific rules as to who can be your Witnesses. They MUST be over the age of 18 and MUST NOT be a beneficiary of your Will.

What is a beneficiary?

Someone who would inherit from your Will. Eg. If you leave $10,000 to your son, then your son would be a beneficiary.

How to execute your Will

To execute your Will please ensure you follow these steps in order:

  • Print the document – single sided;
  • The Testator MUST read their entire Will from front to cover and make sure it is accurate;
  • Make any alterations – *see below for instructions for alterations;
  • Have one blue pen ready for everyone to use;
  • Have your Witnesses ready in the same room watching you as you sign;
  • As the Testator,
    1. Sign at the bottom of each page and on the last page sign in the designated space;
    2. As the Testator, Date the Will with today’s date;
  • Using the same pen, your two Witnesses should:
    1. Sign each page in the space provided;
    2. Date each page;
    3. Complete their name, address, occupation on the last page.
  • Check each page is signed correctly
  • If you would like; take a photocopy of the Will now.
  • Then staple the Will in the top left-hand corner.

Note: Wills should not be made in duplicate.

Testator with difficulties reading or writing

The Will of a Testator who cannot read should be read to the Testator by one of the Witnesses in the presence of the other Witness and the Witnesses must state in the that they heard the Will read and were satisfied that the Testator understood and approved of it.

A Testator who cannot write because of illiteracy or physical disability can place a mark (normally a cross) where she or he would normally sign and the Witnesses must state in the that the mark was made by the Testator.

The Will of a Testator who does not understand the English language should be read to the Testator in her or his language by one of the Witnesses in the presence of the other Witness and the Witnesses must state in the that the Testator understood and approved of it.

What to do with your Will once executed?

Keep your Will in a safe place where it can be found. Tell your family members where they can find the original Will. You may wish to give copies to family members.

Long List of things not to do

  • Do not fold or damage the Will in anyway.
  • Do not attach a paperclip to the Will for any reason.
  • Do not laminate your Will.
  • Do not write on the Will.
  • Do not remove a staple from the Will.
  • Do not make any further alterations to the Will once it has been executed.

Alterations Before Signing your Will

If any minor corrections or alterations need to be made to the Will, they can be made before signing. If there is an error, cross out the mistake and write the correction using a blue pen. The Testator and two Witnesses must then initial near the correction.

Once the Will has been signed, no other changes can be made.

What to do with your Will once executed?

  • Keep your Will in a safe place where it can be found.
  • Tell your family members where they can find the original Will.
  • You may wish to give copies to family members.

Long List of things not to do:

  • Do not fold or damage the Will in anyway.
  • Do not attach a paperclip to the Will for any reason.
  • Do not laminate your Will.
  • Do not write on the Will.
  • Do not remove a staple from the Will.
  • Do not make any further alterations to the Will once it has been executed.

Will Glossary

Click on each section to reveal meaning.

Administrator

The person appointed to administer a deceased person’s estate when he or she dies without having appointed an executor. The administrator carries out the deceased person’s wishes as expressed in the will, if there is one, or otherwise according to the legislation setting out how an estate is to be divided. In doing this, the administrator has the same general responsibilities as an executor.

Advance Care Directive or Advanced Health Directive or Advance Care Plan

A direction about the medical treatment that a person (donor) wants, or does not want, if he or she is at some future time:

  • in the terminal phase of an illness or in a persistent vegetative state.
  • incapable of making decisions about medical treatment when the question of administering the treatment arises.

The forms and terminologies vary from state to state, but these documents may also contain guardianship-type directions about how the donor wishes to be looked after generally when they are unable to make such decisions themselves.

Appointor

This term can mean a number of things, but most often the term is used to describe the person with the power to change the trustee of a trust. Appointors may also have the power to appoint those beneficiaries who are to benefit from distributions from the trust, to approve distributions from a trust proposed by a trustee and to approve amendments to the trust deed.

Attorney

A person appointed pursuant to a Power of Attorney to act as agent for another person (donor) in conducting the donor’s legal, financial, and business affairs.

This may involve the attorney in the following activities (amongst many others):

  • giving instructions to third parties, including with respect to the purchase and sale of assets.
  • managing bank accounts and other financial arrangements.
  • signing on behalf of the donor, including contracts, cheques, and bank documents.
  • paying creditors.
  • conducting legal proceedings.
  • submitting taxation returns and otherwise managing the donor’s taxation affairs.

Beneficiary

In broad terms, a person who is entitled to receive a benefit. The term is often used in the context of a trust to describe a person who is entitled, or may become entitled, to receive income and, or, capital from a trust.

In the context of a Will, a beneficiary is a person or entity that will receive a benefit under that will.

Binding Nomination or Binding Death Nomination

A document directing the trustee of a superannuation fund to distribute superannuation death benefits from the fund in a certain manner. For institutionally managed superannuation funds (for example, industry or retail funds) the requirements of this document are prescribed by legislation. These requirements do not apply to self-managed superannuation funds. In all cases, the trust deed of the relevant superannuation fund must permits its members to make such a direction.

Binding Nomination or Binding Death Nomination

A document directing the trustee of a superannuation fund to distribute superannuation death benefits from the fund in a certain manner.

For institutionally managed superannuation funds (for example, industry or retail funds) the requirements of this document are prescribed by legislation. These requirements do not apply to self-managed superannuation funds. In all cases, the trust deed of the relevant superannuation fund must permits its members to make such a direction.

Codicil

A document amending a will.

Deceased Estate

That which one collectively owns at death and therefore falls to be administered by one’s executor or administrator.

It may be that not all of the assets that you think you own are in fact owned by you. You may be a beneficiary of a trust for example. Assets within a trust are not owned by a beneficiary of that trust until those assets are settled on that beneficiary.

Assets not owned by you at your death will not fall into your deceased estate.

It may also be that not all of the assets that you do own at your death will fall into your deceased estate. Three major examples in this respect are as follows:

  • Assets held as joint tenants with another.
  • Your superannuation death benefits.
  • Life insurance policies in respect of which you have nominated a beneficiary.

Deed

A deed is a legally enforceable document evidencing undertakings, promises, and commitments given by one person unilaterally or by two or more people bilaterally or multilaterally.

A deed is the highest form by which a person can bind themselves.

A deed is primarily distinguished in practical terms from an agreement or contract by the fact that a deed does not require all parties to give something in exchange for promises made. In contract law, this requirement, called consideration, is essential to make the contract binding.

A deed is binding when ‘signed, sealed, and delivered’ to the other parties, although the act of sealing is now commonly constituted by no more than an expression within the document that it has been sealed.

Domestic Partner

A domestic partner is a person in a relationship with another sharing a common domestic life but who is neither married nor in a civil union with that person. The different states of Australia have different laws and terminology relating to domestic partners (a domestic partner is referred to as a defacto in some jurisdictions), but generally the law defines a domestic partner relationship for various purposes (such as property and inheritance claims) on the basis of a certain period of cohabitation or having had children together.

Estate

That which one collectively owns. Most commonly used these days in the context of a deceased estate.

It may be that not all of the assets that you think you own in your estate are in fact owned by you. You may be the primary beneficiary of a trust for example. Assets within a trust are not owned by a beneficiary of that trust until those assets have been settled on that beneficiary.

Executor

The person appointed in a will to administer the willmaker’s deceased estate when he or she dies. The executor carries out the willmaker’s wishes as expressed in the will until such time as the deceased estate has been fully administered.

The executor usually also acts as the trustee of the deceased estate during this time.

In this dual role, the executor’s responsibilities include:

  • calling in, protecting, maintaining and, where appropriate, disposing of the assets of the deceased estate.
  • paying legitimate debts.
  • dealing with claims against the deceased estate.
  • calculating and paying taxes payable by the deceased estate.
  • distributing estate assets to the appropriate beneficiaries.

An executor may be a beneficiary under the terms of the will.

You can have more than one executor, but having more than one can create conflict which may in turn delay the administration of the estate.

You can also have one or more substituted executors who will only act in the event that one or more of your primary executors are unwilling or unable to act.

Family Trust

A discretionary trust established by way of a trust deed during the life of the settlor for a family group and, usually, a wide range of related beneficiaries. These trusts are also frequently called inter vivos trusts. Inter vivos means made “during the course of life”. A family trust is typically controlled by a parent or the parents of the family group (as trustee and / or appointor). The trustee exercises a discretion as to how the income and capital of the trust is to be distributed to the beneficiaries.

Guardian

A person who is responsible for looking after another person’s personal life affairs.

This may involve the guardian in making decisions about the following matters (amongst other things):

  • medical treatment.
  • rehabilitation treatment.
  • educational needs.
  • physical safety.
  • accommodation requirements.
  • visitors.
  • diet.
  • social activities.

The role of a guardian can occur naturally (such as in the parent/child relationship) or can arise by way of an appointment. An appointment may be made by the person that the guardian is to look after, such as in a power of guardianship, or by way of a third party appointment, such as by way of the nomination of a guardian for one’s children in a will or by the appointment of a guardian by a judicial authority.

Infant

A child under 18 years of age.

Inter Vivos Discretionary Trust

A discretionary trust (frequently called a family trust) established during the life of the settlor, often for the benefit of a specific family group and a wide range of related beneficiaries. An inter vivos discretionary trust is distinguished from a testamentary discretionary trust, the latter being established in a testamentary document such as a will and becoming effective on the death of the willmaker (who is, effectively, the settlor in that case). An inter vivos discretionary trust is typically controlled by a parent or the parents of the family group (as trustee and / or appointor). The trustee exercises a discretion as to how the income and capital of the trust is to be distributed to the beneficiaries.

Inter Vivos Trust

Inter vivos means made “during the course of life”. Therefore, an inter vivos trust is a trust established during the life of the settlor by way of a trust deed. An inter vivos trusts is distinguished from a testamentary trust, the latter being a trust established in a testamentary document such as a will that become effective on the death of the willmaker (who is, effectively, the settlor in that case).

Intestate

A person who has not validly disposed of some or all of their assets at their death (‘he died an intestate’) or the state of having died as such (‘his estate is intestate’).

A commonly used related term is ‘intestacy’ (‘the fact that he didn’t have a will caused his intestacy’).

An intestacy is most commonly caused by the failure to make a Will, but even those who do make a Will can die wholly or partially intestate if the Will has not been properly drafted. If you die wholly or partially intestate, your relevant assets will be distributed according to a statutory formula. This may mean that those assets will not end up with the person you would have chosen.

Joint tenancy

The joint ownership of assets by two or more people where, if one dies, the remaining joint tenants share proportionally in the deceased joint tenant’s interest or the last remaining joint tenant becomes the sole owner.

Joint tenancy is contrasted to tenancy in common. With a tenancy in common, on the death of a tenant in common, that person’s interest falls into their estate rather than pass to the other tenant(s) in common.

Medical Agent

A person appointed pursuant to a medical power of attorney to make decisions for another about that person’s medical treatment when they are unable to do so.

Medical Power of Attorney (pl. medical powers of attorney)

A document signed by a person (donor) appointing another person as his or her medical agent. A medical agent must make decisions for the donor about his or her medical treatment when the donor is unable to do so.

Only one medical agent can be appointed to act at any one time, but alternative medical agents can be appointed in descending order to cover the inability of previously named medical agents to act.

Probate

The process of proving in the Supreme Court that a will is valid. Usually, the process of probating the will is quite straightforward, although it can be difficult for the inexperienced.

The term also describes the state of having successfully probated the will, as in ‘the executor has probate’.

Probate provides the executor with certain legal protections in administering the deceased estate. Even if a person is named as the executor in a will, that person must be careful as to how much he or she does with the deceased estate before receiving probate. It may be, for example, that a new will surfaces, in which case the executor of the previous well may be at risk if what he or she has done prejudices the administration of the estate in accordance with the newly uncovered will.

Even if there is a will, probate may not be necessary, for example when the estate is small.

Power of Attorney

A written document signed by a person (donor) appointing another person as his or her attorney. Historically, powers of attorney were:

  • specific, meaning that, if you did not nominate the specific power that the attorney was to exercise, they did not have that power.
  • only operative whilst the donor had capacity to look after their own affairs.

As a result of legislation in each State and Territory of Australia, powers of attorney can now be either or both:

  • general, that is the attorney can do anything that an attorney is able to lawfully do as an attorney.
  • enduring, that is the power endures beyond the donor’s loss of legal capacity.

Powers of attorney can also:

  • be operative either immediately or in case of need.
  • limit the powers that the attorney may exercise.

Power of Guardianship

A written document signed by a person (donor) appointing another person as his or her guardian.

Powers of guardianship can limit the powers that the guardian may exercise or give directions as to how powers are to be exercised.

Settle

Passing ownership to another, such as when a trustee passes the legal ownership in an asset from a trust to that beneficiary.

Superannuation Death Benefits

The monies payable by the trustee of a superannuation fund upon the death of a member of that fund.

Superannuation Death Benefits Direction

A direction to the trustee of a superannuation fund as to how superannuation death benefits are to be distributed at the death of a member of that fund. The direction can be binding or non-binding on the trustee.

Tenancy in Common

The joint ownership of assets by two or more people where, if one dies, that person’s interest falls into their estate to be distributed according to the terms of their will or the rules of intestacy. Tenancy in common is contrasted to joint tenancy. With a joint tenancy, the remaining joint tenants share proportionally in the deceased joint tenant’s interest or the last remaining joint tenant becomes the sole owner, as the case may be.

Testamentary Capacity

The capacity of a person to properly understand and take into account all of the relevant factors that he or she should take into account when deciding how to divide and otherwise deal with his or her deceased estate upon his or her death.

Testamentary Discretionary Trust

A discretionary trust established in a will in which a willmaker leaves all or part of his or her estate to his or her beneficiaries in discretionary trusts rather than giving the property outright to those beneficiaries. Such a trust is typically controlled by the beneficiary (as trustee) who would ordinarily have received that share of the estate outright, such as a spouse or child. The trustee exercises a discretion as to how the income and capital of the trust is to be distributed to a potential range of beneficiaries who are, once again typically, related to the relevant beneficiary.

Testamentary Trust

A trust established in a will. Often refers to a testamentary discretionary trust. However, a testamentary trust can also be a fixed trust, such as where a benefit is held in trust for an infant, intellectually disabled, spendthrift or otherwise vulnerable child, sometimes until the happening of a certain event (such as an infant child reaching a certain age).

Testator / Testatrix

A deceased person who has left a valid will. Historically, a testator was male and a testatrix was female, but this distinction is rarely made now and the term “testator” generally applies now to both sexes.

Trust

A trust is a structure created when a person (the settlor) passes full ownership and control of something (money, land or other property) to another person (the trustee) to be held by that person for the benefit of one or more people (the beneficiaries). Other property may be brought within, and distributed from, the trust from time to time.

The property held by a trust from time to time is commonly called the trust fund or trust assets.

The trust fund is legally owned by the trustee, but the trustee must hold and deal with the trust fund for the benefit of the beneficiaries who have, or who may come to have, what is called a beneficial or equitable interest in the trust fund, which is a superior interest to the legal interest.

Trust Assets

The assets (money, land or other property) held by a trustee of a trust for the benefit of the beneficiaries of that trust. The trust assets are legally owned by the trustee, but the trustee must hold and deal with the trust assets for the benefit of the beneficiaries. Also called the trust fund and trust property.

Trust Deed

A trust deed is a legally enforceable document evidencing the creation and terms of a trust.

Trust Fund

The pool of assets (money, land or other property) held by a trustee of a trust for the benefit of the beneficiaries of that trust. The trust fund is legally owned by the trustee, but the trustee must hold and deal with the trust fund for the benefit of the beneficiaries. Also called trust assets and trust property.

Trust Property

The property (money, land or other property) held by a trustee of a trust for the benefit of the beneficiaries of that trust. The trust property is legally owned by the trustee, but the trustee must hold and deal with the trust property for the benefit of the beneficiaries. Also called the trust fund and trust assets.

Trustee

The legal owner of assets that are held in trust for one beneficiary (that cannot be the trustee) or more than one beneficiary (which may include the trustee). The trustee legally owns the assets of the trust, but must hold and deal with those assets for the benefit of the beneficiaries of the trust whilst discharging the trustee’s fiduciary duties to the beneficiaries.

Vesting Day

The day that the trust comes to an end and the trust assets of the trust are distributed to (vested in) certain nominated beneficiaries.

In all jurisdictions in Australia except for South Australia, trusts must vest no later than 80 years after the trust commenced. In South Australia, the trust may, subject to the terms of the trust deed, continue indefinitely but there is a power provided to the beneficiaries of the trust to apply to the Supreme Court to wind up the trust.

Will

A revocable written document, which must comply with certain statutory requirements, which comes into effect upon a person’s death and which sets out what is to happen to that person’s deceased estate.

The will should also nominate those responsible for carrying out those wishes (the executors). It may also deal with other issues, such as the guardianship of children and funeral arrangements.

Willmaker

The person making a Will. Traditionally called a testator (male) or testatrix (female), although in some jurisdictions this distinction is no longer made.

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