Probate Law Glossary Of Probate Law & Estate Related Terms
Probate law can be complex and difficult at the best of times, but for someone that has never had experience with probate law, things can get very confusing.
It is always best to familiarise yourself with common terms used in this procedure as you will then be better equipped to deal with the matter at hand.
Below, you will find a list of common terms associated with probate law:
529 Plan - is a tax advantaged savings plan designed to help save money for future college costs.
A-B Trust- a trust that helps couples lower or avoid estate taxes. Each spouse puts their property in a trust. When one spouse dies, half of the property goes to the beneficiaries named in the trust. This type of trust is also known as a credit shelter or a bypass trust.
Abatement - a common law doctrine when assets of the deceased are less than the debt to the creditors, their debts must be paid first.
Administer - to manage or supervise the estate. He or she ensures that all statutory guidelines are followed.
Administration - the process by which the assets of the deceased are gathered and dispersed to the rightful heirs if there is no will or the beneficiaries if there is a Trust or Will.
Administrator - This is the name given to a person that is appointed by the court to deal with the estate of the deceased in the event that no will was left.
Ancillary Probate - this is where the probate takes place in a different state than where the deceased resided. There is typically real estate involved in ancillary probate.
Assignment - is the transfer of rights held by one party to another party.
Attestation Clause - Its purpose is to allow the will to be admitted to probate without affidavits. This can also be called a self-proved will.
Attorney in Fact - This is the name given to a person who has been granted the power of attorney.
Beneficiary/Beneficiaries - This is the name given to the recipient of recipients of a will or policy. Bequest: This is the term used to describe a gift of property in a will.
Bequeath - to give or leave by will.
Bequest- personal property given from decedent by will.
Co-Executor - more than one person sharing the fiduciary duty to ensure the estate is being handled properly.
Codicil - This refers to an amendment that changes the provisions stipulated in the original will. Contest: This refers to the questioning of the will's validity.
Collateral Kin - a good example of collateral kin would be brothers and sisters.
Community Property - Examples of assets that do not constitute community property include: inheritance, gifts, settlements from personal injuries and property brought into a marriage.
Conditional Bequest - This is a gift of personal property in a Will that requires a specific performance or nonoccurrence prior to distribution.
Conservator - The conservator is given the authority to make financial decisions and handle your financial affairs, under court supervision, when you lack the capacity is given the authority to handle financial decisions, under court supervision, when the person is not in the right mind to make the decisions.
Conservatorship -This is the relationship between the conservator and the person that is disabled.
Contingent Beneficiary - This is the term given to a person that could take the place of the primary beneficiary under certain circumstances.
Corpus - assets held by a trust.
Creditors - is a party who has a claim to the estate because they are owed money by the decedent.
Custodian - a legal guardian or conservator.
Decedent - This refers to the deceased.
Dependent - This refers to a person that has to rely on another for support (e.g. children, family)
Devise - This refers to real estate left as a gift in the will.
Devisee - is the person who the real estate was given to via the will.
Direct Skip - when property is left to a lower generation than the closest kin.
DOD - abbreviation for Date of Death
Domicile - is the state where the decedent lived before their passing.
Domiciliary Estate - the decedent has property in multiple states.
Durable Power of Attorney - enables the agent to act for the principal even after the principal is not mentally competent or physically able to make decisions.
Duress - when an individual is intimidated into doing something they do not want to do.
Escheat - This is where there are no surviving beneficiaries for the will and the estate goes to the state.
Estate - This refers to all assets (e.g. property, jewelry, businesses etc.) and liabilities (e.g. taxes, debts etc.) left by the decedent.
Estate Planning - includes dealing with all the elements of transfer of wealth prior to death or incapacity.
Estate Tax - This refers to both federal and state taxes on property that is transferred following the death of the owner.
Execute - Validating a document through completion and signature.
Execution - is a proper witnesses and attestation for the signature of a will.
Executor - This refers to the person who is names in the will to be responsible for distribution of the estate to beneficiaries.
Exoneration - executor pays off debt.
Fiduciary - is a legal relationship between two or more parties. A fiduciary manages property on behalf of an individual or entity.
Fiduciary Bond - is a judicial bond that guarantees that a court-appointed fiduciary or executor performs all duties.
General Devise - to assign or transmit property by will.
Gift - is the transfer of property or other assets without receiving something in return.
Gift Giving Program - transferring assets to others by getting the maximum annual exclusion allowed.
Gift Taxes - Federal and state taxes given to the donor of property or money when the gift exceeds applicable exclusions.
Governing Law - provision that explains which state will have jurisdiction to apply states laws to the document.
Grantor - is also known as a Trustor or a Settlor. The grantor is the person who creates the Trust document.
Guardian - court appointed fiduciary that protects and cares for an incapacitated person or a minor.
Guardian ad Litem - guardian appointed by the court to serve the best interest of a minor.
Guardianship - is a proceeding when a judge establishes if a person has become incapacitated to the point where they need someone to make their decisions for them. Legal guardianship is more durable than a simpler transfer of custody to caretakers.
Health Care Power of Attorney - is a document that appoints a person to make health care decisions for individuals that are incapacitated.
Heir - an heir is an individual that has a claim to an estate.
Holographic Will - a will that does not have proper witnesses at the signing. A holographic will is also handwritten.
Homestead Allowance - discussion of an estate planning technique which protects the residence of the surviving spouse from creditor's claims.
Indefinite Legacy - this is a provision in a will that gifts assets with the terms "all" or "every" so that no specifics are described.
Inheritance Tax - certain beneficiaries are taxed on proceeds they are given from the decedent's estate.
In Terrorem Clause - provision in a will that states anyone who contests the will shall forfeit assets set forth in the will.
Intestacy - describes a transfer of wealth when there is no will present. Each state has statutes that describe in detail the succession of death.
Intestate - person passes away without a will.
Inventory - is list of assets that the decedent owned.
Irrevocable - gift or document that cannot be changed or revoked.
Joint Tenants with Right of Survivorship - two or more individuals own an interest in property. No will or document is needed to transfer property. The party that survives the longest out of the joint tenants owns the property outright.
Law of Descent and Distribution - is the state statute that sets forth the distribution of assets to the heirs of the estate.
Legacy - is a gift of personal property in a will.
Letter of Instruction - is a letter left by the decedent that gives instructions to family members to carry out after the decedent's death.
Letters of Administration - this is a document granted by a probate registry or court to appoint competent people to deal with the deceased person's estate.
Letters Testamentary - authorizes the executor of the decedents will to carry out the terms set forth by the will.
Liabilities - This refers to outstanding debts left by the decedent.
Liquid Assets - This is anything that can be immediately converted to cash.
Living Will - ensures that your wishes are carried out should you become incapacitated.
Next of Kin - the closest blood related relative.
No-Contest Clause - a provision set forth by the decedent that discourages the contesting of the will.
Notary - This is the term used to describe a person that is commissioned to attest the validity of the signatures on a legal document.
Personal Property - this term refers to all tangible property. Land does not qualify as personal property.
Personal Representative - gathers and creates an inventory of all of the decedent's property and assets at the time of death. Personal Representative can also be referred to as the "executor".
Petition - when a person asks for something specific in a written request to the court.
P.O.D. - payable on death.
Power of Attorney - This is a written document, which gives permission for another person to represent you and act on your behalf.
Pre-need Funeral Trust - individual purchases burial services during one's life, so that the decedent's family does not have the burden of the funeral decisions.
Probate - Refers to the legal process involved in ascertaining the validity of a will.
Probate Assets - assets owned by the decedent subject to distribution via the probate process.
Real Property - things such as buildings, pools, land, etc.
Residue - This refers to the remainder of the estate after distribution of specified items/land. Testament: This is a term that refers to the will.
Self Dealing - This occurs when a fiduciary disregards the best interest of the estate by handling a function that should be outsourced to a professional.
Self-proven Will - a will that has a certificate attached to prove that the document was properly executed.
Taxable Estate - this is a portion of estate that is subject to taxation.
Tenants in Common - is property ownership between 2 or more people. Each tenant can leave his or her interest to beneficiaries of their choosing.
Testament - another term for a person's will.
Testamentary - all items that pertain to the last will and testament.
Testate - is a term that describes a person that passes away with the absence of a will.
Testator - This refers to the person that has made the will. Will: This is a legal document that lists the testator's assets and the beneficiaries of these assets following the testator's death. Witness: This refers to a person/s that are present at the writing of the will and that sign this legal document in their capacity as witnesses to the will.
Title - is a document that establishes ownership of property.
Will - this is a document that helps a person distribute his or her assets after death.
Witness - a person that is present during the signing of a will or other document.
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