Legal Terminology 111 Ch.11

per stirpes

(Latin) Means "by the root;" according to class; by representation. This is a method of dividing or distributing and estate in which the heirs of a deceased heir share the portion of the estate that the deceased heir would have received had he lived. EXAMPLE: Bill has two living children, Mary and Sam, and two grandchildren by Adam, a deceased child. If Bill's $900,000 estate is divided per stirpes among his heirs, Mary and Sam each receive $300,000, and Adam's children each receive $150,000, sharing the $300,000 portion which Adam would have received had he lived.

per capita

(Latin). Means "by the head"; by the individual. 1. For each person. 2. A method of dividing an estate in which all persons who are equally related to the decedent share equally in the estate. EXAMPLE: Bill has two living children, Mary and Sam, and two grandchildren by Adam, a deceased child. If Bill's $900,000 estate is divided per capita among his heirs, Mary and Sam each receive $450,000 and Adam's children receive nothing. Compare per stirpes.

trust

1. A fiduciary relationship involving a trustee who holds trust property for the benefit or use of a beneficiary. Property of any description or type may properly be the subject of a trust. The trustee holds legal title to the trust property (also called the res or corpus of the trust); the beneficiary holds equitable title. A trust is generally established through a trust instrument, such as a deed of trust or a will, by a person (known as the settlor) who wishes the beneficiary to receive the benefit of the property but not outright ownership. A trust may, however, also be created by operation of law: implied trust

trust fund

1. A fund held in trust by a trust company or other trustee. See also trust funds. 2. A fund that, although not held in trust in the technical sense, is held under a relationship "of trust" which gives one the legal right to impose certain obligations upon the holder of the funds.

testamentary gift

1. A gift that is the subject of a testamentary disposition. 2. A generic term for a legacy, bequest, or devise

beneficiary

1. A person who receives a benefit. 2. A person who has inherited or is entitled to inherit under a will. 3. A person for whom property is held in trust. 4. A person who is entitled to the proceeds of a life insurance policy when the insured dies. 5. A person designated by statute as entitled to the proceeds of a legal action such as a wrongful death action. n. heir, recipient, successor, legatee, assignee

testament

1. A will. The terms "testament," "will," "last will," and "last will and testament" are synonymous. 2. A declaration of faith, belief, or principle. n. attestation, colloquy, covenant, demonstration, statement, exemplification, testimonial, will, last will

living trust

1. An inter vivos trust. A trust created during the lifetime of its creator and becomes effective in his lifetime, as opposed to a testamentary trust which takes effect at death. 2. An active trust.

executed

1. Completed, performed, or carried out. 2. Signed. adj. cut, signed

surrogate

1. In some states, the title of a judge who presides in probate court.

competency

1. Legal capacity. The ability to execute binding contracts, wills,etc. 2. A testator is considered competent if she understands the general nature and extent of her property, potential beneficiaries of the estate, and the purpose of a will. 3. The right to sue and be sued.

distribution

1. The act of the administrator of an estate in allocating the decedent's property among his heirs, or by an executor of the estate where the decedent left a will. 2. Allocation.

estate

1. The property left by a decedent; (i.e., a decedent's estate). 2. The right, title, and interest a person has in real or personal property, either tangible or intangible. Estates in real property (estates in land or landed estates) include both freehold estates (EXAMPLES: a fee simple; a fee tail; a life estate) and estates less than freehold (EXAMPLES: estates for years; estates at will). 3. The property itself. n. assets, wealth, property, fortune, personality, effects

pretermitted heir

A child of a testator who is omitted from the testator's will. Generally the right of such a child to share in the decedent's estate depends on whether the omission was intentional or unintentional. If there is an unintentional omission, a statute might provide that such child shall share in the estate as though the testator died without a will.

attestation clause

A clause, usually at the end of a document such as a deed or a will, that provides evidence of attestation. EXAMPLES: "signed, sealed, and delivered in the presence of " "; "witness my hand and seal.

lapsed devise

A devise that was good when the will was made but has failed since then because of the death of the legatee before the death of the testator.

trust instrument

A document in which a trust is created. EXAMPLES: a deed of trust; a will

decedent

A legal term for a person who has died. See also decedent's estate. n. deceased, testator, intestate, dead individual, departed

guardian ad litem

A person appointed by the court to represent and protect the interests of a minor or an incompetent person during litigation.

executor

A person designated by a testator to carry out the directions and requests in the testator's will and to dispose of his property according to the provisions of his will. Compare administrator. n. administrator, fiduciary, custodian, personal representative

testator

A person who dies leaving a valid will.

administrator

A person who is appointed by the court to manage the estate of a person either who died without a will or whose will failed to name an executor or named an executor who declined or was ineligible to serve. The administrator of an estate is also referred to as a personal representative. n. representative, executor, trustee ("the estate's administrator)

legator

A person who makes a gift of property in a will to the legatee.

surety

A person who promises to pay the debt or to satisfy the obligation of another person

legatee

A person who receives personal property as a beneficiary under a will, although the word is often loosely used to mean a person who receives a testamentary gift of either personal property or real property. Compare devisee, legator. n. recipient, devisee, beneficiary, donee, legal heir

attesting witness

A person who witnesses the signing of a document. See also attestation.

durable power of attorney

A power of attorney that remains effective even though the grantor becomes mentally incapacitated. Some durable powers of attorney become effective only where a person is no longer able to make decisions for herself. EXAMPLES: A healthcare proxy; a living will. See advance directive

estate tax

A tax imposed by the federal government and most states upon the transmission of property by a deceased person. The tax is imposed upon the net estate of the decedent without reference to the recipient's relationship to the decedent or to the amount a recipient receives. An estate tax is a transfer tax

advance directive

A term for the various instruments a person can use to insure that her wishes with respect to health care are carried out if she is no longer able to speak for herself. EXAMPLES: a healthcare proxy; a living will. See durable power of attorney.

devisor

A testator who makes a devise.

testamentary trust

A trust created by will.

discretionary trust

A trust in which broad discretion is vested in the trustee and is to be exercised by her in carrying out the purposes of the trust.

trust inter vivos

A trust that is effective during the lifetime of the creator of the trust. n. living trust

trustee ad litem

A trustee appointed by the court, as opposed to a trustee appointed in a trust instrument.

nuncupative will

A will declared orally by a testator during his last illness, before witnesses, and later reduced to writing by a person who was present during the declaration. n. oral will; deathbed will

holographic will

A will that is entirely written and signed by the testator in his own handwriting. In many states, the requirement that the signing of a will be witnessed is not imposed in the case of a holographic will, because a successful counterfeit of another person's handwriting is very difficult; the requirement that the will be entirely in handwriting is therefore thought to be sufficient protection against forgery.

legacy

Accurately, a gift of personal property by will, although the term is often loosely used to mean any testamentary gift; a bequest. Compare devise. n. grant, bequest, endowment, present; tradition, history, meaning ("the legacy of River Phoenix")

issue

All persons who are descendants of one ancestor, including all future descendants. However, when used in a will, "issue" will be taken to mean children or grandchildren, or all living descendants of one ancestor, including all future descendants, if that is the testator's intention.

bypass trust

Also called a credit shelter trust or credit trust. This is used for estate planning purposes so that a deceased spouse's estate passes or goes to a trust instead of to the surviving spouse. This is generally used by married couples to pass money on to their children and bypass as much government estate taxes as is possible.

estate of inheritance

Also known as a fee, a freehold interest in land that is inheritable; i.e., an interest which the tenant is not only entitled to enjoy for his own lifetime, but which, after his death, if he leaves no will, his heirs will inherit under the intestate laws.

uniform probate code

An act which was promulgated in 1969 to streamline and make the probate process more uniform throughout the country. The law was intended to be adopted by all the states, however less than half have adopted it or some portion of it.

codicil

An addition or supplement to a will, which adds to or modifies the will without replacing or revoking it. A codicil does not have to be physically attached to the will. n. addition, supplement, appendix, accessory, addendum, attachment, extension ("codicil to a will")

estate per autre vie

An estate that is to last for the life of a person other than the tenant. EXAMPLE: "I give Blackacre to my son-in-law, Samuel Jones, for as long as my daughter, Mary Brown Jones, shall live

estate upon condition

An estate whose existence, enlargement, or termination is conditioned upon the happening of a particular event. Such conditions are either expressed in the deed, will, or other instrument that creates the estate, or they are implied by law.

will

An instrument by which a person (the testator) makes a disposition of her property, to take effect after her death. n. bequest, bestowal, declaration, disposition, estate, legacy ("last will and testament") v. bequest, confer, devise, legate, probate ("to will an estate to someone")

trust indenture

An instrument stating the terms and conditions of a trust.

testamentary instrument

An instrument whose language clearly indicates that its author intended to make a disposition of his property, or some of his property, to be effective upon his death. A will is an EXAMPLE of a testamentary instrument

trust officer

An officer of a financial institution who manages trust funds.

testamentary intent

For a court to admit a will to probate, it must determine that the testator intended the instrument to be her last will

elective share

In some states, the share a surviving spouse may elect to take in the estate of the deceased spouse. In such jurisdictions, it replaces dower. See dower

intestate succession

Inheritance from a person who dies intestate. Compare testate succession.

inter vivos trust

Living trust.

trust funds

Money held in a trust account. See also trust fund.

heir hunters

Persons, often lawyers, who troll probate court filings from public administrators. When documents show missing heirs to a rich estate, hunters locate heirs and offer inheritance information- for a fee.

testamentary

Pertaining to a will; pertaining to a testament.

trust estate

Phrase sometimes used to mean the property held by the trustee for the benefit of the beneficiary, and sometimes used to mean the interest that the beneficiary has in the property.

publication clause

Portion of a will that states that the instrument reflects the wishes of the testator.

estate planning

Pre-death arrangement of a person's property and estate best calculated to maximize the estate for the beneficiaries during and after the person's life.

trust property

Property that is the subject of a trust. It is also referred to as the trust res, the res of the trust, or the corpus of the trust.

pour-over trust

Provision in a will which directs that the property be distributed into a trust.

intestate laws

State statutes that set forth the rules by which property passes when a person dies intestate. See also intestate succession

testate succession

Taking property under a will rather than by inheritance. Compare intestate succession

bequest

Technically, a gift of personal property by will, i.e., a legacy, although the term is often loosely used in connection with a testamentary gift of real estate as well. Compare devise. See also bequeath. n. gift, devise, endowment, heritage, legacy

vested

That which cannot be taken away; indefeasible. 2. Absolute; definite; established; fixed. USAGE: "He had a vested devise."

attestation

The act of witnessing the signing of a document, including signing one's name as a witness to that fact. n. endorsement, affirmation, certification, testimony, evidence ("an attestation clause")

devisee

The beneficiary of a devise

administrator de bonis non

The court-appointed administrator of the estate of a decedent whose executor has died or resigned. De bonis non, a Latin phrase meaning "goods not administered," is often abbreviated DBN. Compare administrator CTA.

administrator cum testamento annexo

The court-appointed administrator of the estate of a decedent whose will failed to name an executor or whose named executor cannot or refuses to serve. Cum testamento annexo, a Latin phrase meaning "with will attached," is often abbreviated CTA. Compare administrator DBN

fiduciary duty

The duty to act loyally and honestly with respect to the interests of another; the duty the law imposes upon a fiduciary.

testate estate

The estate of a person who dies leaving a valid will.

intestate estate

The estate of a person who dies without leaving a valid will.

letters of administration

The formal document issued by the probate court appointing an administrator for an estate.

dower

The legal right or interest that a wife acquires by marriage in the property of her husband. Dower no longer exists, or has been modified in most states, but every state retains aspects of the concept for the protection of both spouses. See elective share

testamentary capacity

The mental capacity of a testator, at the time of making her will, to be able to understand the nature of her act and, generally if not precisely, the nature and location of her property and the identity of those persons who are the natural objects of her bounty.

trustee

The person who holds the legal title to trust property for the benefit of the beneficiary of the trust, with such powers and subject to such duties as are imposed by the terms of the trust and the law. n. guardian, fiduciary, custodian

curtesy

The rights a husband had under the common law with respect to his wife's property. Today these rights have been modified in every state in various ways, but all states that retain curtesy in some form extend the same rights to both spouses. Note that "curtesy" is not "courtesy.

testacy

The status of the estate or property of a person who dies without leaving a valid will. Compare intestacy. See also testate.

intestacy

The status of the estate or property of a person who dies without leaving a valid will. See also intestate. Compare testacy

decedent's estate

The total property, real and personal, that a decedent owns at the time of her death.

right to die

This refers to the right of a person to determine what limits, if any, she wishes to impose with respect to efforts to prolong her life if she becomes gravely ill. See living will.

forced heirs

Those persons whom the testator or donor cannot deprive of the portion of his estate reserved for them by the law, except in cases where he has reason to disinherit them (i.e. person's spouse.

predecease

To die before another person.

bequeath

To leave personal property or money by will; such a gift is called a bequest or a legacy. A gift of real property by will is properly called a devise, although the courts generally construe "bequeath" as synonymous with "devise" when it is used in connection with a testamentary gift of real estate. v. grant, give, assign, remit, leave, provide

execute

To sign a document. USAGE: "I will not rest until I execute my will." v. accomplish, perform, achieve, administer, complete ("she was quick to execute her obligations under the contract")

attest

To swear to; to bear witness to; to affirm to be true or genuine. See also attestation. v. adjure, announce, assert, aver, certify, swear, support, sustain

testate

adj. Pertaining to a person, or to the property of a person, who dies leaving a valid will. See testacy. n. 1. A person who dies leaving a valid will. 2. The status of a person who dies leaving a valid will. Compare intestate

intestate

adj. Pertaining to a person, or to the property of a person, who dies without leaving a valid will. EXAMPLE: "John died without a will and left an intestate estate." See also intestacy. Compare testate. n. 1. A person who dies without leaving a valid will. USAGE: "John is an intestate." 2. The status of a person who dies without leaving a valid will. USAGE: "John died intestate." See also intestacy. Compare testate.

fiduciary

adjective. That which is based upon trust or confidence; the relationship between a fiduciary and his principal. noun. A person who is entrusted with handling money or property for another person. EXAMPLES: attorney and client; guardian and ward; trustee and beneficiary.

probate

n. 1. The judicial act whereby a will is adjudicated to be valid. 2. A term that describes the functions of the probate court, including the probate of wills and the supervision of the accounts and actions of administrators and executors of decedents' estates. v. 1. To prove a will to be valid in probate court. 2. To submit to the jurisdiction of the probate court for any purpose. v. validate, authenticate, certify, establish, substantiate ("the court must probate this will") n. validation, adjudication, verification, confirmation

devise

n. A gift of real property by will, although it is often loosely used to mean a testamentary gift of either real property or personal property. Compare bequest; legacy. v. 1. To dispose of real property by will. By comparison, "bequeath" is a word used in wills to transfer personal property. However, the term "devise and bequeath" applies to both real property and personal property. Compare bequest; legacy. v. confer, bequeath, convey, endow ("she devised her business operation to her daughter") n. inheritance, legacy, transfer, conveyance ("the devise of the family jewels")

will contest

n. An attempt to defeat the probate of a will, commonly referred to as an attempt to "set aside the will."