Probate Terms

Probate court proceedings — in which a deceased person’s money, property and land are distributed according to the terms of his or her will — is often stressful and confusing for surviving family members.
The deceased, may or may not be referred to as a decedent, may or may not have left a valid will appointing a personal representative (or executor) to manage the final matters of his or her estate.

Executor responsibilities include collecting all assets, paying any taxes or debts and distributing what remains to the beneficiaries named in the will. If there is no will, the probate court appoints an administrator to perform these duties.  

In some cases, the decedent's spouse or relatives are thrust into the probate process with little to no understanding of the terminology used in legal documents, by attorneys and within the probate court. Probate can be time-consuming and difficult, but it certainly helps to familiarize yourself with the lingo.

Here are some important terms you may encounter during the probate process:

A

Administrator: If a person dies without leaving a will, an administrator is appointed by the probate court. This person, sometimes a family member, is in charge of collecting assets of the estate, paying its debts and distributing the rest to beneficiaries. An administrator may also be called a representative or personal representative.

Assets:  A person’s property that holds monetary value, whether it is tangible, intangible, land or personal property. Upon the owner’s death, assets can be distributed to beneficiaries or used to repay debts. 

B

Bequeath: The act of handing down personal property in a will.

Bequest: Personal property handed down in a will.

Beneficiary: A person or organization who inherits property according to the terms of a will, trust or life insurance policy.

C

Codicil: A change or addition to a will. Just like a will, a codicil must be signed in front of a witness.

Community property: After marriage, all real and personal property acquired by a couple is called community property. It is owned by both the husband and wife.

Creditor: Any person or organization to whom a deceased person owes money at the time of death.

D

Debtor: A person who owes money.

Decedent: A person who has died.

Devisee: A person who receives a gift of real estate (land, buildings and fixtures) by a will.

E

Estate: The total property of a deceased person, including money, jewelry, land, stocks, bonds and other forms of intangible property.

Executor: This person, named in a will, serves as a personal representative to the deceased’s estate. The executor deals with the probate court, collects assets and distributes them according to the terms of the will.

F

Fiduciary: A person or organization that manages someone’s property and holds legal responsibility for its care.

G

Gift: The transfer of money or property without expecting any payment or conditions.

H

Heir: A person who is legally entitled to inherit property through a will, or from a person who died without leaving a will.

I

Intangible assets: Personal property that has monetary value but no physical being besides a document proving its existence. Examples include stocks, bonds, trademarks, patents and intellectual property.

Intestate: If the deceased does not leave a valid will, then they are said to have died intestate. If this occurs, the estate is distributed according to state probate law.

J

Joint tenancy: A property owned by two or more people, each holding the right to inherit the property after the death of a joint tenant.

L

Living trust: A trust people can create and manage while they are alive to avoid probate. Upon death, money and property in the trust is given directly to the trust’s beneficiaries.

Liquid assets: Property that can be quickly converted to cash. Examples include stocks, bonds and mutual funds.

M

Marital deduction: This deduction allows anyone to pass his or her entire estate to a surviving spouse without having to pay any estate tax.

N

No contest clause: A provision to a will that excludes anyone who challenges the will’s validity from receiving a part of the estate.

P

Payable on Death (POD) account: A bank account with a named beneficiary. The beneficiary has no control over the account while the account holder is alive, but inherits the funds without probate upon the holder’s death.

Personal property: Any material property that a person owns, excluding intangible assets.

Probate: The legal process of administering the terms of a will. This typically involves authenticating the will, appointing an executor or administrator, paying any debts and taxes, identifying heirs and distributing the estate according to the will or state succession laws.

Probate Court: The court that handles wills and estates of the deceased, including the distribution of money and property.

R

Real property: Land and permanent fixtures on that land, such as houses and buildings.

Relict: A widow or widower.

S

Small Estates: If a person leaves an estate with little monetary value, it is said to be a small estate and may be exempt from probate. State laws define what constitutes a small and large estate.

T

Tangible assets: Personal property, besides real estate, that is material and can be touched. This excludes documents like stocks and bonds, which are considered intangible assets. Examples of tangible assets include money, vehicles, furniture, computers and family heirlooms.

Testator: The author of a will.

U

Undue influence: Improper influence over someone who is making financial decisions or writing a will. If a lawyer or family member is accused of undue influence, the validity of the will may be challenged.

Uniform Probate Code (UPC):  A comprehensive statute aiming to modernize and unify the laws governing probate across all fifty states. More than a dozen states have adopted UPC in its entirety, while others have adopted various portions.

V

Vested remainder: The unconditional right of a beneficiary to receive property at some point in the future.

W

Ward: A minor or disabled person who is given a court-appointed guardian.

Will:  Also known as a last will and testament, this legal document explains how a person’s property will be distributed in the event of his or her death. It can also name a guardian to take care of young children if necessary.