We make a will so as to provide for our loved ones; to be able to choose who will inherit our property. But writing down our intentions so that they are clear and unambiguous for others when we are no longer around, is not easy. For example take the words “issue” and “children”. The word “issue” is a legal term meaning all of a person’s descendants; not just their children.
Administration of a deceased person’s estate – proving the validity of a will
By B Stead
Probate is the official process to establish or prove, whether a deceased person’s will or testamentary document is valid and intended to be their last will.
A grant of probate is the document issued by the Court of Probate after the examination process. A type of grant of representation, it is an order of the Court certifying that the executor (or personal representative) named in the document is lawfully authorised to administer the estate of the deceased person. More
Leaving beneficiary details helps streamline estate administration
Not everyone lives and works in the community in which they grew up, surrounded by family and friends.
Many leave to pursue opportunities elsewhere, maybe never to return. Family ties may weaken in time, and contact is lost. What if you want to leave them something in your will?
By: B Stead
Left out of a will or seeking more – who can apply for provision?
Family provision laws were introduced to remedy situations where willmakers failed to leave adequate provision for the proper maintenance, support and advancement in life for close family, usually spouses, partners and children.
The legislation gives the court1 discretionary power to order provision from a deceased person’s estate, where found to be inadequate, to “eligible” applicants, under certain circumstances. It is not automatic.
What does the ‘residue’ or ‘to give the residue of my estate’ mean?
The residue of a deceased person’s estate is what is left over after the payment of all expenses in connection with the estate.
Expenses include payment of the funeral, costs incurred in the administration of the estate, payment of the deceased’s debts, the discharge of any liabilities of the deceased, and the distribution of any specific gifts made under their will.
The residue or residuary estate is property of the deceased not disposed of by the terms of their will.
Wills are important private and confidential documents. An original will should be stored in a safe and secure place after being signed and witnessed. Ideally the place should be fireproof and the like. Depending on the status of family relationships, if kept at home, it the document should be protected from tampering or destruction. And don’t forget to inform your executors where the will is located.
Probate law requires that the original will be attached to an application for a grant of probate from the court. Without it, the timely administration of the deceased’s estate is delayed until the situation is resolved. A summary of the usual approaches to storing a will follows.
Per stirpes and per capita distribution of a deceased estate
Per stirpes and per capita are Latin terms referring to the ways in which a person’s estate can be distributed among their descendants, their children, grandchildren and so on. A person’s descendants are often referred to as “issue” in succession and inheritance law. As the term ‘issue’ refers to more family than just ‘children’ this can lead to confusion when interpreting what a will-maker intended. For more see this article on using the words “issue” and “children” in wills.
Per stirpes and per capita are different ways of distributing property among a group or class of people, either under a will or when there isn’t one. They address the situation where one or more family descendants of a person have predeceased them. Per stirpes means ‘by the stocks, roots or branch” and per capita means ‘by the head’, by each individual person in equal shares. More
“Issue” is a legal word often used in wills regarding estate distribution
Language can be confusing. Words like ‘issue’ and ‘children’, may be thought of in one way by some, but be interpreted differently by others, see graphic.
The problems may not arise until the will-maker has passed away; leaving the question what did they really mean? This article is about the meaning of issue in wills.
By: B Stead
Many people own property with another person in a co-ownership arrangement. Spouses or partners typically own their residence together in joint names, family members; or friends may own a property together for investment.
An important issue to consider upfront when buying property are the consequences of when a co-owner dies. How the property is owned between people, that is, its tenancy, can give very different outcomes on death. Ideally these should be considered at the time of purchase.
Questions to ask include who can take a co-owner’s interest when they die? Would this be what they want to have happen? If not, can they state their intention in their will? Or is the property owned in a way that on death the interest automatically passes to the survivor/s outside of a will, as in joint tenancy? This article looks at tenancy issues. More