Common Legal Terms Relating To Wills And Intestacy

ABATEMENT

Cutting back certain gifts under a will when it’s necessary to meet expenses, pay taxes, satisfy debts or take care of other bequests that are given priority under law or under the will.

ADEMPTION

The failure of a testamentary gift of real or personal property due to the absence of the item given in the testator’s estate at the time of death.

ADMINISTRATOR — EXECUTOR

An administrator is a person appointed by the court to settle an estate.

An executor is a person named by the estate owner in his or her will to settle the estate.

An administrator may be appointed (1) when the deceased left no will, (2) where the deceased left a will but failed to name an executor, (3) where the executor in the will failed to qualify or refused to serve, and (4) where the executor in the will, after having qualified, fails to settle the estate.

ADVANCEMENT

Money or property given by a parent to his child, other descendant, or heir (depending upon the statute’s wording), or expended by the former for the latter’s benefit, by way of anticipation of the share which the child, for example, will inherit in the parent’s estate and intended to be deducted therefrom.

AFTER-BORN CHILD

A child born after the execution of a parent’s will.

ATTESTATION

The attestation clause is the paragraph appended to the will indicating that certain persons by their signatures thereto have heard the testator declare the instrument to be his will and have witnessed his signing of the will.

AUGMENTED ESTATE

A method used in a number of states following the common law ownership of property system to measure a person’s estate for the purpose of determining whether a surviving spouse has been adequately provided for. Generally, the augmented estate consists of property left by the will plus certain property transferred outside of the will by such devices as gifts, joint tenancies and living trusts. In the states using this concept, a surviving spouse is generally considered to be adequately provided for if he or she receives at least one-third of the augmented estate.

BENEFICIARY

A person or organization who’s legally entitled to receive benefits under a legal document such as a will or trust. Except when very small estate are involved, beneficiaries of wills receive their property only after the will is examined and approved by the probate court. Beneficiaries of trusts receive their property as provided in the trust instrument.

BEQUEST

Bequests are classified, generally speaking, as specific or general. A specific bequest is a gift of a particular specified class or kind of property as, for example, a gift of the testator’s diamond ring to a named individual or a gift of designated stock in a corporation. A general bequest is one which may be satisfied from the general assets of the estate as, for example, a bequest of a sum of money without reference to any particular fund from which it is to be paid. Since a specific bequest designates a particular item of the estate which is to be given, if that item is not in existence at the time of the testator’s death, the gift fails.

BOND

A document guaranteeing that a certain amount of money will be paid to people who lose money because a person occupying a position of trust doesn’t carry out his or her legal and ethical responsibilities. For example, if an executor, trustee or guardian who’s bonded (covered by a bond) wrongfully deprives a beneficiary of his or her property (say by blowing it during a trip in Vas Vegas), the bonding company will replace it, up to the limits of the bond. Bonding companies are normally divisions of insurance companies.

CODICIL

A supplement or addition to an existing will, to effect some revision, change, or modification of that will. A codicil must meet the same requirements regarding execution and validity as a will.

COLLATERAL RELATIONS

A phrase used primarily in the law of intestacy to designate uncles and aunts, cousins, etc., those relatives not in a direct ascending or descending line, like grandparents or grandchildren, the latter which are designated as lineal relations.

CUSTODIAN

A general term to describe a personal or financial institution that has charge or custody of property, securities, papers, assets, etc. Also, a person named to care for property left to a minor under the Uniform Transfers to Minors Act.

DECEDENT

A deceased person, especially one who has died recently.

DOMICILE

A person’s legal home. That place where an individual has his true, fixed, and permanent home and principal establishment, and to which whenever he is absent he has the intention of returning.

DONEE

The recipient of a gift. In the law of wills, the term is used to refer to the recipient of a power of appointment.

DONOR

A person who makes a gift. In the law of wills, the term refers to the person who grants a power of appointment to another.

ENCUMBRANCES

Debts (such as taxes, mechanics’ liens, judgment liens) and loans (such as mortgages, deeds of trust, and security interests) which use property as collateral for payment of the debt or loan. They encumber the property because they must be paid off before title to the property can pass from one owner to the next. Generally, the value of a person’s ownership in such property (called the “equity”) is measured by the market value of the property less the sum of all encumbrances.

GUARDIAN

A person named to represent the interests of minor children, whether named in a will or appointed by a court.

HEIR

Technically those persons designated by law to succeed to the estate of an intestate (also designated as next of kin).

HOLOGRAPHIC WILL

A will entirely in the handwriting of the testator. In many states, such a will is not recognized unless it is published, declared and witnessed as required by statute for other written wills.

INTESTACY STATUTES

Statutes designating the persons to whom an intestate’s property is to be distributed, and the share each is to take.

INTESTATE

Without a will. A person who leaves no will is an intestate. A person who dies without a will dies intestate.

JOINT TENANCY

Type of ownership of real or personal property by two or more persons in which each owns an undivided interest in the whole and attached to which is the right of survivorship. When two or more people own property as joint tenants, and one of the owners dies, the other owners automatically own the deceased owner’s share. For example, if a parent and child own a house as joint tenants, and the parent dies, the child automatically becomes the full owner. Because of this “right of survivorship,” a joint tenancy interest in property doesn’t go through probate. Instead, it goes directly to the surviving joint tenant(s). See also: How Property is Transferred at Death

LAPSE

The failure of a testamentary gift due to the death of the intended beneficiary during the life of the testator.

LAST WILL AND TESTAMENT

The usual term referring to a will. The phrase is an outgrowth of the old English law under which a “will” was a disposition of real estate and a “testament” was a disposition of personal property. The two terms originally meant different things. The difference is no longer recognized, however. Nothing is added by coupling “testament” with “will,” the latter being sufficiently inclusive.

LEGACY

A legacy is a gift of personal property by will. It would perhaps be proper to use the term “Bequest” to include any disposition by will, the term “devise” to cover gifts of real estate, and the term “legacy” to cover gifts of personal property. However, both at law and in common practice, the terms are not used with any great respect for this distinction and often appear more or less interchangeably.

LIVING TRUST

A trust set up while you are alive. See: What is a Trust?

NUNCUPATIVE WILL

An oral will, declared or dictated by the testator in his last sickness before a sufficient number of witnesses, and afterwards reduced to writing.

PAY ON DEATH (POD) BANK ACCOUNT

An account enabling you to name a beneficiary who will receive the funds in the account outside of probate after your death.

PERSONAL PROPERTY

Generally, all property other than real estate. Examples of personal property include cars, bank accounts, wages, securities, a small business, furniture, insurance policies, jewelry, pets, etc.

POWER OF APPOINTMENT

A power of appointment is essentially the right to designate who is to own certain specified property. See: What is a Power of Appointment?.

POWER OF ATTORNEY

An instrument in writing whereby one person, as principal, appoints another as his agent and confers authority to perform certain specified acts or kinds of acts on behalf of principal (i.e, you authorize someone to act for you). A durable power of attorney exists when a person executes a power of attorney which will remain effective in the event he or she should later become disabled. For instance, a durable power of attorney allows someone to act for you if you become disabled or incapacitated, to make financial decisions for you.

PROBATE

The process of proving the validity of the will in court and executing its provisions under the guidance of the court. When a person dies, his or her will must be filed before the proper officer of the proper court, giving this court jurisdiction in the matter of enforcing the document. This is called “filing the will for probate.” When the will has been filed, it is said to be “admitted to probate.” The process of “probating” the will involves recognition by the court of the executor named in the will (or appointment of an administrator if none has been named), the filing of the proper reports and papers as required by law, determination of validity of the will if contested, and distribution and final settlement of the estate under the supervision of the court.

RESIDUARY ESTATE

The remaining part of testator’s estate, after payment of debts and requests. Wills usually contain a clause disposing of the residue of the estate which the testator has not otherwise bequeathed or devised.

TAKING AGAINST THE WILL

The choice by a surviving spouse to claim a statutorily allotted share of the deceased spouse’s estate instead of the share specified in the deceased spouse’s will.

TENANCY IN COMMON

A form of ownership whereby each tenant (i.e., owner) holds an undivided interest in property. It is a way of sharing ownership of property where the shares need not be equal. Each owner’s share can be left to whomever he or she wants.

TESTAMENTARY TRUST

A trust of certain property passing under a will and created by the terms of the will.

TESTATOR — TESTATRIX

The person who makes a will. If a man, he is a testator. If a woman, she is a testatrix.

TRUST

A legal entity created by a grantor for the benefit of designated beneficiaries under the laws of the state and the valid trust instrument. The trustee (an individual or institution) holds a fiduciary responsibility to manage the trust’s assets and income for the economic benefit of all of the beneficiaries. See: What is a Trust?

UNIFORM TRANSFERS TO MINORS ACT

A series of statutes, adopted by most states, that provides a method for appointing an adult (called a custodian) to manage property left to a minor.

WILL

A document in which an individual makes a disposition of his real and personal property, to take effect after his death.