Probate Glossary
When it comes to probate and inheritance, most heirs don’t have much knowledge about either process or what’s involved. As an inheritor, it’s essential to know the ins and outs of settling an estate through probate and securing an inheritance. With a greater understanding of these concepts, beneficiaries can more easily follow along in the asset distribution process. If you’re in line to receive an inheritance, be sure to learn about some of the main terms associated with probate.
A person or institution appointed by the court (in the absence of a will otherwise naming an executor) to distribute the assets according to state intestacy laws and to pay creditors and taxes. The intestate personal representative.
A written statement made under oath.
The age when a person acquires all the rights and responsibilities of being an adult. In most states the age of majority is 18.
The transfer of legal rights from one person to another.
The process for verifying that the deceased’s last will and testament is valid. The probate court typically relies on witness statements when making its determination.
A person who inherits property, money or other benefits from a will, insurance policy or trust.
A court-mandated posting bond serves as a guarantee that the executor of the deceased’s estate will adhere to state laws and the terms of the will or trust.
The profit made from the sale of a capital asset, such as real estate, jewelry, or stocks and bonds.
The loss that results from the sale of a capital asset, such as real estate, jewelry or stocks and bonds.
A type of bankruptcy in which a person keeps their assets and pays creditors according to an approved plan.
Codicil: An amendment to a will.
A type of bankruptcy in which a person’s assets are liquidated (collected and sold) and the proceeds are distributed to the creditors.
In some states, a couple is considered married if they meet certain requirements, such as living together as spouses for a specific length of time. Such a couple has all the rights and obligations of a traditionally married couple.
Property acquired by a couple during their marriage. Some states divide everything the couple gains after getting married evenly between them. In the event of divorce or death, the property is split 50-50 with no consideration of which partner paid for the asset or holds it in their name.
Person or institution a court appoints to protect the interests of an incompetent and act on their behalf as a guardian.
An agreement between two or more parties in which an offer is made and accepted, and each party benefits. The agreement can be formal, informal, written, or oral. Some contracts are required to be in writing in order to be enforced.
A person (or institution) to whom money is owed.
Specific time frame, as defined by state probate laws, during which creditors can file a claim against a decedent’s estate.
A person who will dispense and manage funds on behalf of a child. This person is not subject to court supervision or accounting requirements under the Uniform Transfers to Minors Act.
The specific date and time the deceased is declared legally dead by a physician, coroner or medical examiner. It can also be the date that an individual disappears under life-threatening circumstances.
Person who owes money.
The failure to fulfill a legal obligation, such as neglecting to pay back a loan on schedule.
Number designation assigned to each case filed in a particular court.
An agreement that allows one party access to another’s property, often used by utilities that must run phone lines or pipes under private property.
A probate law enabling a spouse to inherit a specific portion of the estate after their partner’s death regardless of a will.
The point at which a minor becomes independent from their guardians. Emancipation can result from turning 18, proving to be entirely self-supporting or getting married.
Any claim or restriction on a property’s title.
Money or documents, such as a deed or title, held by a third party until the conditions of an agreement are met. For instance, pending the completion of a real estate transaction, the deed to the property will be held “in escrow.”
A special account in which a lawyer or escrow agent deposits money or documents that do not belong to the lawyer or the law firm.
The assets and liabilities left by a decedent.
Latin that means “by or for one party.” Refers to situations in which only one party appears before a judge.
A person or institution named in a will and appointed by the court to oversee and manage an estate, including the distribution of assets and satisfaction of creditors and taxes.
A legal partnership between members of a family for the management and control of property.
An obligation to act in the best interest of another party. For instance, a corporation’s board member has a fiduciary duty to the shareholders, a trustee has a fiduciary duty to the trust’s beneficiaries, and an attorney has a fiduciary duty to a client.
When a borrower cannot repay a loan and the lender seeks to sell the property.
The person who sets up a trust.
Person appointed by the court to take care of minor children or incompetent adults.
Sometimes called a conservator.
Latin for “guardian at law.” The person appointed by the court to look out for the best interests of the child during the course of legal proceedings.
Dying without a legal will.
A trust written during a person’s lifetime that does not allow them to modify its contents.
A form of pension fund payment in which the retired participant gets a check every month. If and when the participant dies, the spouse continues to get a monthly check equal to one-half of the benefit for the rest of their life.
A way to title (own) property where each person (tenant) owns an undivided interest. When one tenant dies, their interest passes to the survivor.
A person named in a will who will inherit property, synonymous with a beneficiary.
A claim against someone’s property. A lien is instituted in order to secure payment from the property owner in the event that the property is sold. A mortgage is a common lien.
A trust made — and in the case of revocable living trusts, changed — while the maker is alive. Irrevocable trusts cannot be modified.
A document outlining the maker’s wishes for specific circumstances, such as when they must receive medical treatment or are on life-support.
A tax provision that allows an unlimited amount of property of one spouse to transfer to the other upon death without incurring estate or gift tax.
According to most state laws, a person under 18. Minors do not have adults’ legal rights until they reach the age of majority and gain the relevant responsibilities.
The deceased’s closing living blood relatives, including spouses and adopted family members.
A person authorized to witness the signing of documents.
An employer’s program for providing retirement income to eligible employees.
Latin for “by familial stocks.” Distribution of an estate equally among the members of a group of descendants having a particular degree of kinship (as children), with the issue (that is, the offspring) of a deceased member of that group representing the deceased member, taking the deceased member’s share, and dividing it equally among themselves. For example, if a decedent had three children, one of whom had already died leaving issue, the estate would be divided into thirds, with each living child receiving a one-third share, and the issue (children) of the deceased child dividing a one-third share equally amongst themselves.
A person who manages the legal affairs of a decedent in probate. If the decedent had a will, then the personal representative is known as the Executor (if the Executor is female, Executrix). If the decedent did not have a will and the assets are being distributed according to laws of intestacy, then the personal representative is known as the Administrator (if the Administrator is a female, Administratrix).
The probate court document that summarizes a will’s provisions and names the heirs.
The authority to act legally for another person.
The court supervised process whereby a decedent’s assets are distributed to a decedent’s heirs and creditors are paid back after s/he passes away.
A document in which a borrower agrees (promises) to pay back money to a lender according to specified terms.
A deed that transfers the owner’s interest to a buyer but does not guarantee that there are other claims against the property.
A piece of land and anything considered part of it. For example, a home falls under real property, while a dining room set is personal property.
The amount of the decedent’s estate left over after property bequeathed to heirs has been distributed.
The person or persons named in a will to receive any residue left in an estate after the bequests of specific items are made.
Refers to the up front payment a client gives a lawyer to accept a case. The client is paying to “retain” the lawyer’s services.
A legal document that may be changed or cancelled that allows you to maintain control of your assets. It is used to avoid probate and for estate planning purposes.
A co-owner’s right to the property if the other co-owner in a join-tenancy dies. The co-owner cannot give away their share.
A will signed in a notary public’s presence with a witness’s sworn statement.
A trust designed to keep money out of the hands of creditors, often established to protect someone who is incapable of managing their financial affairs.
The entitlement of one spouse to inherit property from the other spouse. The right varies from state to state.
In many states and in the majority of probate matters, the amount an attorney can charge for their services is specified by law as a percentage of the gross value of the estate.
Anything other than real estate or money, including furniture, cars, jewelry, etc.
A joint ownership agreement in which one party can bequeath or sell their share without obtaining consent from the other owners. If an owner dies without a will, their share will go to their heirs rather than to the other owners under the joint ownership.
A trust created by a will’s provisions, typically created after the will’s writer passes away.
Having a legal will.
The person who makes a will.
Ownership of property.
A bank account in your name for which you name a beneficiary. Upon the death of the named holder of the account the money transfers automatically to the beneficiary.
The entity who will manage or oversee a trust.
A legal document that directs the distribution of assets upon death.
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