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Estate Planning Dictionary

 terminology guideline to Wills and Estates

At RNG Lawyers, it is our mission to give clear and practical advice to you. We work hard to use plain English and will take the time to explain difficult concepts to you. We understand that there is a lot of confusing terminology, especially around elder care and estate planning. This dictionary is intended to clarify some of the common terminology in this area.

A

Administrator (when you have passed away)

A person appointed by the Court to be your legal personal representative if you pass away and do not have an executor to take on this role. This usually occurs if you die without a Will (intestate) or if your nominated executors are not able to act for you.

Administrator (while you are alive)

If you are unable to make reasonable decisions regarding your own financial affairs and you do not have an attorney, VCAT may make an Administration order appointing someone as your administrator to make these decisions for you.

Advance Care Directive

A document prepared with your Doctor.  It sets out your values, and specific instructions and preferences regarding medical treatment.  It will be used by your health care professional in the event you do not have capacity to make decisions regarding your medical treatment.

Assisted Dying (Euthanasia)

Victoria has recently introduced a scheme for assisted dying. The scheme only applies in very limited cases. If you have a Medical Treatment Decision maker or Enduring Power of Attorney – Medical, they may refuse treatment on your behalf but they cannot participate in the assisted dying scheme for you.

Attorney

An adult appointed by you to make decisions on your behalf during your lifetime. You choose the scope and conditions of this authority. 

B

Binding Death Nomination

A document which binds your Super Fund to distribute your super balance (if any) after you pass away in accordance with your wishes. Without this document, the Super Fund has some discretion.  In order to remain binding, most Binding Death Nominations need to be renewed at least every 3 years.

Binding Financial Agreement (“BFA”)

A binding legal agreement for people contemplating entering into a de facto relationship or marrying. The agreement sets out their financial arrangements in case of a relationship breakdown.  A BFA can be made before, during or after a de facto relationship or marriage.

C

Codicil

A document signed by you which varies part of your Will. It is an alternative to making a new Will. Codicils can be useful when you only need to make minor changes to your existing Will.

E

Enduring Power of Attorney (“EPA”)

A special class of power of attorney which continues to operate even if you become incapable to make those decisions yourself. You can make an enduring power of attorney in relation to your personal matter (formerly known as “an Enduring Power of Guardianship”) and financial matters. Prior to 12 March 2018, you could make an Enduring Power of Attorney for Medical Treatment. Existing Enduring Power of Attorney for Medical Treatment continue to apply however if you wish to make a new appointment, you now need to appoint a Medical Treatment Decision Maker instead.

Estate

The legal name given to your assets and liabilities, generally when someone else is looking after them for you (such as when you pass away). For example:  "when I pass away, I give my whole estate to my children."

Executor

A person appointed by you in your Will to be your legal personal representative when you pass away and to carry out the wishes in your Will.

F

Financial Matters

In regards to an Enduring Power of Attorney, is any matter relating to your financial or property affairs and can include significant decisions such as buying and selling real estate.

G

Guardianship (child)

Legal authority to make decisions for a child. Generally, a child’s parents will be their legal guardians. You can nominate a person to be the guardian of your children should something happen to you in your Will.

Guardianship (adults)

If you are unable to make reasonable decisions regarding your own personal matters (not financial matters) and you do not have an attorney, VCAT may make a Guardianship order appointing someone as your guardian to make these decisions for you.

I

Intestate

When you pass away without leaving a valid Will.  If you pass away intestate, your assets will be distributed by a legal formula regardless of your wishes.

M

Medical Treatment Decision Maker (since 12 March 2018)

An adult appointed by you make medical decisions on your behalf if you do not have decision making capacity and have not made an instructional directive in relation to the medical treatment decision.  A Medical Treatment Decision Maker must make the decision that they reasonable believes is the decision you would have made.

P

Personal Matters

In regards to an Enduring Power of Attorney, refers to your personal or lifestyle affairs, including where you can live, who you can associate with, daily living, diet and dress.

Power of Attorney

A legal document used to appoint an attorney,

Principal

The person who made the Power of Attorney.

R

Refundable Accommodation Deposit (“RAD”)

A payment made to an aged care facility to secure payment of your fees. It is similar to a bond. You can choose to drawn down on your RAD to pay your aged care fees. The balance of your RAD is refundable if you move out of the aged care facility of if you pass away.

T

Trust

A legal concept where you separate legal control and responsibility of something (such as a house) from the benefits of ownership. The person with control is usually the trustee and the person who benefits is the beneficiary.  In the case of a house, the trustee would be responsible for the house while the beneficiary would get to live in it or get the rent if it is tenanted.

Testamentary Trust Will

A Testamentary Trust is a very flexible form of Will which protects 'at risk' beneficiaries from creditors. An 'at risk' beneficiary may be someone who has substantial business risk, is or may become a bankrupt or involved in current Court proceedings.

The Testamentary Trust sets up a Trust for each primary beneficiary who will be the Trustee of their own separate Trust.  They each control their own separate Trust and can make their own investment decisions. The beneficiary can also dispense with the trust if they prefer and take their inheritance directly.

Testator’s Family Maintenance / Family Provision

A type of challenge to a Will. To be successful, a claimant needs to prove that the deceased had a moral duty to provide for them and that the deceased has failed to provide them with adequate support and maintenance. 

W

Will

A document which ensures that your Estate is distributed according to your wishes after you pass away.

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Information current as at 22 July 2019.