Glossary
Updates and background for this project (Digest)
Ademption. When a testator has made particular property the subject of a specific legacy in his or her will, but that property no longer forms part of the estate at the testator’s death, under the doctrine of ademption, the legacy cannot be paid to the beneficiary and is said to have been “adeemed”.
Administration. Administration is the process by which a personal representative administers a deceased estate, that is, generally, by collecting the assets, paying the debts and distributing the balance of the estate according to the will or intestacy rules.
Administration de bonis non. A court makes a grant of administration de bonis non to a person so he or she can complete the administration of an estate where all previous administrators or executors have ceased to hold office.
Administrator. An administrator is a personal representative to whom the Court has granted letters of administration in order to administer an estate.
Beneficiary. A beneficiary is a person entitled to receive all or part of an estate according to the terms of a will or the intestacy rules.
De bonis non see Administration de bonis non.
Domicile. A person’s domicile is the place where he or she is permanently resident, requiring both the fact of residence and an actual intention to remain permanently.
Double probate. A grant of double probate arises where some of the executors nominated by a will reserve leave to apply for probate at a future date and, subsequently, do so. The subsequent grant then runs concurrently with the first grant.
Election to administer. An election to administer is a means of obtaining authority to administer an estate under a specified value, without the need to apply formally to a court for a grant of representation. A prescribed person, usually a public trustee, trustee company or a legal practitioner, may obtain an election to administer by filing the prescribed form with the court.1
Executor. An executor is a personal representative, nominated in a deceased person’s will, to whom a court grants probate in order to administer the estate.
Executor de son tort. (Literally, an “executor of his own wrong”.) An executor de son tort is person who acts in the administration of an estate without being formally appointed as a personal representative.
Exemplification. An exemplification is an official copy of a public or judicial record made under the seal of a court that may be used to prove the contents of the original record.
Family provision. A court may order family provision be made from a deceased person’s estate for the proper maintenance and support of the deceased’s family or dependants where the deceased’s will or the intestacy rules make inadequate provision for them. In NSW, Chapter 3 of the Succession Act 2006 (NSW) governs family provision.
Grant (of representation). A grant of representation is a document, generally issued by a court, that officially recognises the right of an executor or administrator to administer an estate. Examples include a grant of probate made by a court, a grant of letters of administration made by a court, an order to administer made by a court or an election to administer filed in a court.
Intermeddle. When an executor de son tort acts in the administration of an estate, he or she is sometimes said to intermeddle in the estate.
Intestate. A person is intestate if he or she dies without leaving a will, or leaving a will that does not effectively dispose of the whole or part of his or her estate.
Letters of administration. Letters of administration authorise an administrator to administer an estate. A court grants letters of administration where the deceased does not leave a will and grants letters of administration with the will annexed where the deceased leaves a will that does not appoint an executor or appoints executors who are unable or unwilling to act.
Order to administer. Referred to in some jurisdictions as an “order to collect and administer” or as an “administration order”. An order to administer allows the public trustee (or equivalent official) to deal with certain estates, in absence of anyone else applying for a grant of representation, as though he or she had obtained a grant of administration. In NSW, the Supreme Court may allow the NSW Trustee to act “if it appears to the Court that there are reasonable grounds to suppose that the person has died intestate (whether in or outside New South Wales) leaving property in New South Wales”.2
Personal representative. A personal representative is generally either an executor or administrator or other person with authority to administer an estate.
Probate. Probate is the authority which a court gives an executor to administer an estate. “Probate” is sometimes also used to refer to the registry of a court that deals with the issuing of grants of probate or letters of administration.
Testator. A testator is a person who makes a will.
Will. A will is a formal document (or documents) made by a testator that disposes of his or her property on death and includes a codicil and any other testamentary disposition. In NSW, Chapter 2 of the Succession Act 2006 (NSW) governs the making and interpretation of wills
FOOTNOTES
1. See Chapter 3 part 6.
2. NSW Trustee and Guardian Act 2009 (NSW) s 25.
