Wills and estate planning – some important concepts

Testator:Deceased person who dies having made a Will
Executor:Person named in the Will to carry out testator’s directions (including distributing assets to nominated beneficiaries)
Trustee:Person named in the Will who becomes the holder of Estate’s assets once the administration of the Estate has been completed. (Often it the same person or persons who act as the Executor)Administration of the Estate is complete when all assets have been identified and all liabilities paid. The Executor is then in a position to distribute the balance (residue) according to the terms of the Will.  Sometimes though the person(s) named as the intended recipient (beneficiary) cannot receive the asset because:

  • he or she is under a legal disability (e.g. under 18 or having some mental infirmity)
  • the Testator has specifically stated that a trust in favour of the beneficiary (rather than an outright gift) is to be established

In such situations, the legal ownership of the assets must continue to remain with another person – the trustee 

The Trustee’s role is to safeguard the trust assets and to distribute trust income or capital, as directed by the Will, to the beneficiaries

Because a trustee has control of assets that are intended to benefit a third party, he or she must comply with statutory rules and guidelines

 
 Probate: Grant formally recognising:

  • validity of Will; and
  • consequential authority of the person named as executor to act as the legal personal representative of the estate
Intestacy:When a person dies without leaving a valid Will
Parchment:Document to which the Supreme Court’s seal has been affixed for probate.  Either the original or a certified copy is produced to a third party (e.g. financial institution) as evidence of the executor’s authority to deal with the deceased person’s property

 EXECUTOR’S DUTIES 

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