Estate Planning

Term

Explanation
(from the glossary
chapter of AMEPSG)

Pocket Summary

A clause, usually in a Will, requiring
the executor to distribute the estate
assets as if they were part of a total
estate that included non-estate
assets such as superannuation death
benefits, Family Trust, wages foregone
or capital contribution foregone

Vulnerable
beneficiaries

A Legal Personal Representative
appointed under a power of
attorney

Binding
death benefit
nomination

A binding death benefit nomination
is a written and usually witnessed
nomination (made by a member of
a superannuation fund as to the
payment of future death benefits)
that, unlike an advisory nomination,
is binding on the trustee 

A document (prepared in the same way
as a Will) that amends a Will that
has already been executed

The assets of a person who has died
(assets such as superannuation paid
directly to a lump sum or income
stream dependant or the first to die
of joint tenants do not form part of a
deceased estate) 

The term "disability" has different
meanings for estate planning purposes
depending on the context, eg "disability"
in relation to a superannuation
"income stream dependant" has a less
restrictive meaning to a "disability" for
the purposes of an SDT

Equalisation
clause

An executor or trustee is only entitled
to charge a commission or fee to act
as executor or trustee or if
specifically authorised to do by both
governing law and the terms of the
Will or trust Deed (special charging
rules apply to professional trustee
companies and legal practitioners)

Executor controlled testamentary
trust is a trust established by the
terms of a Will where the principal
beneficiary of the trust is not
empowered to exercise effective
control of the trust & instead control
is exercised by the person (or persons)
appointed by the Will to be the
executor & trustee of the deceased
estate

State and territory legislation that
enables domestic partners, children,
other relatives and dependants to
make a claim on a deceased estate
and challenge the terms of a Will or
a distribution to be made pursuant
to the intestacy rules

Life interests
and rights of
occupation

General
power of
attorney

Income
test

A legal personal representative is a
person who represents (and can enter
into financial dealings for) a living
person as the attorney or administrator
or a deceased estate as the executor
or administrator

The key beneficiary or beneficiaries
of a family trust established by Deed
or a BCTT and the person or persons
from whom other beneficiaries are
defined by relationship or
association

The confirmation by an Australian state
or territory Supreme Court or overseas
judicial authority of the validity of a Will
- an application for probate may need to
be made in more than one jurisdiction
eg because real estate owned by the
deceased is located in a different state,
territory or country than the one in which
the deceased was resident at the time
of death

The balance of a deceased estate
available for distribution to the
residuary beneficiaries after the
payment of deceased estate debts,
testamentary expenses, the payment
of cash and specific bequests and the
creation of life interests or non-residue trusts

A right, usually set up as part of a Will,
giving a person a usually personal,
non-transferable right to occupy a
property for a defined period, eg 12
months, until commencing a domestic
relationshp or, most commonly, for
the balance of the peron's lifetime