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.
Person named in a will or insurance policy to receive money or property; person who receives benefits from a 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 his 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 husband and wife 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. Refers to the system in some states for dividing the couple’s property in a divorce or upon the death of one spouse. In this system, everything a husband and wife acquire once they are married is owned equally (fifty-fifty) by both of them, regardless of who provided the money to purchase the asset or whose name the asset is held in.
Person or institution designated by the court to protect the interests of an incompetent and act on his/her behalf. Sometimes called 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.
Under the Uniform Transfers to Minors Act, the person appointed to manage and dispense funds for a child without court supervision and accounting requirements.
Person who owes money.
Person who passed away.
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.
Gives one party the right to go onto another party’s property. Utilities often get easements that allow them to run pipes or phone lines beneath private property.
Refers to probate laws that allow a spouse to take a certain portion of an estate when the other spouse dies, regardless of what was written in the spouse’s will.
When a minor has achieved independence from his or her parents, often by getting married before reaching age 18 or by becoming fully self-supporting.
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.
Person entitled to inherit property of the decedent.
A handwritten will.
Dying without a legal will.
A trust created during the maker’s lifetime that does not allow the maker to change it.
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 his or her life.
A way to title (own) property where each person (tenant) owns an undivided interest. When one tenant dies, his or her interest passes to the survivor.
Also known as a beneficiary. Person named in a will to receive property.
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 created during the maker’s lifetime. Some living trusts are set up so that they can be changed during the maker’s lifetime. These are called “revocable.” Others, known as “irrevocable,” are set up so that they can’t be touched.
A document that states a person’s wishes regarding life-support or other medical treatment in certain circumstances, sometimes when death is imminent.
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.
A person who does not have the legal rights of an adult. A minor is usually defined as someone who has not yet reached the age of majority. In most states, a person reaches majority and acquires all of the rights and responsibilities of an adult when he or she turns 18.
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.
Land and all the things that are attached to it. Anything that is not real property is personal property. A house is real property, but a dining room set is not.
Also known as residue of the estate. Portion of the estate left after bequests of specific items of property are made.
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.
In a joint-tenancy, the property automatically goes to the co-owner if one of the co-owners dies. A co-owner in a joint tenancy cannot give away his or her share of the property.
A will accompanied by a sworn statement from witnesses and signed before a notary public.
A trust designed to keep money out of the hands of creditors, often established to protect someone who is incapable of managing his or her 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 his or her 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 type of joint ownership that allows a person to sell his share or leave it in a will without the consent of the other owners. If a person dies without a will, his share goes to his heirs, not to the other owners.
A trust created by the provisions in a will. Typically comes into existence after the writer of the will dies.
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.
Person or institution that oversees and manages a trust.
A legal document that directs the distribution of assets upon death.
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