Wills and Estates

LETTERS OF ADMINISTRATION

A court grant appointing someone to administer an intestate estate.

LETTERS PROBATE

A court grant confirming the appointment of an executor named in a will to act and confirming the validity of the will as the last valid will.

CERTIFICATE OF ESTATE TRUSTEE DURING LITIGATION

A document appointing an estate trustee, by court order, to act for the estate during estate litigation. This trustee cannot distribute the estate without a court order.

LIVING WILL

A document containing instructions for medical treatment or health care or the with holding of such treatment or care. Usually part of a power of attorney for personal care.

CERTIFICATE OF APPOINTMENT OF ESTATE TRUSTEE WITHOUT A WILL

A document granted by the court appointing someone to administer the intestate estate.

CERTIFICATE OF APPOINTMENT OF ESTATE TRUSTEE WITH A WILL

A document granted by the court that certifies that the will is the last valid will of the deceased and that confirms the appointment of the estate trustee.

CODICIL

A document made after a will that alters a will.

AFFIDAVIT OF EXECUTION

A document sworn by a witness to a will, that states the proper witnessing procedure was followed. The affidavit also states that the witness believes that the testator is over the age of 18.

TRUST

A formal arrangement wherein a person known as the settlor transfers assets into a legal arrangement to be managed by a trustee for the benefit of the beneficiaries of the trust.

DONATIO MORTIS CAUSA

A gift made in contemplation of death and conditional upon the donor's death occurring.

SPECIFIC LEGACY

A gift of a particular item: for example, my Rolex watch to my son.

BEQUEST

A gift of a specific item of personal property made in a will.

DEMONSTRATIVE LEGACY

A gift to paid from a specific source. For example, " I leave to my niece $5000 from my investment account at ABC Bank Ltd.".

POWER OF ATTORNEY FOR PROPERTY

A legal document in which the grantor give someone, namely the attorney, the power to make financial decisions for the grantor.

POWER OF ATTORNEY FOR PERSONAL CARE

A legal document in which the grantor names someone to be his or her attorney to make health and personal care decisions for him or her in the event that he or she is incapable of doing so.

PRECATORY MEMORANDOM

A memorandum containing the testator's wishes regarding the disposition of assets, or giving funeral, burial or other instructions. It is not legally binding.

JOINT TENANCY

A method of holding title to property whereby if one owner dies the remaining joint owners automatically become the owner(s) of the property by right of survivorship.

TRUSTEE

A person appointed in a trust instrument to manage trust assets on behalf of the beneficiaries of the trust.

EXECUTOR

A person appointed in a will to manage the estate following the testator's death.

INTESTATE

A person who has died without a valid will, or condition having died without a valid will.

GRANTOR

A person who is making a power of attorney.

TESTATOR

A person who makes a will.

ESTATE ADMINISTRATION BOND

A promise by the estate trustee to fulfill the estate obligations, and a promise by the estate trustee and a third party to indemnify any beneficiaries and creditors who have suffered a loss as a result of any failure by the estate trustee to carry out his or her duties.

COMMON DISASTER CLAUSE

A provision in a will to deal with the situation wherein two people die within a short period of time of each other.

SPRINGING POWER OF ATTORNEY

A springing power of attorney is called that because it "springs" into action if you become incapacitated. Durable power of attorney becomes effective as soon as you sign the document, and continues to be effective if you are incapacitated. Giving someone power of attorney is a big deal.

PROBATE FEES

A tax charged by the court on the value of the estate when obtaining a certificate of estate trustee from the court.

ESTATE ADMINISTRATION TAX

A tax that must be paid to the court based on the value of the deceased's estate when obtaining a certificate of estate trustee from the court.

ROLLOVER

A term used in estate and income tax law to describe the transfer of property from one person to another without the property being taxed like it normally would be when it is transferred. Spouses are permitted to roll over from one to another without it being taxed until the recipient spouse sells the property or dies.

SPOUSAL

A trust in favor of my spouse whereby all of the income must be paid only to the spouse during the spouse's lifetime, and no one else is entitled to any of the capital during the spouse's lifetime.

TESTAMENTARY TRUST

A trust set up in a will to take effect upon death.

INTER VIVOS TRUST

A trust that is set up to operate during a person's lifetime.

FORMALLY ATTESTED WILL

A will that has been executed in the presence of at least two people.

HOLOGRAPH WILL

A will, valid in certain jurisdictions, that has been made entirely in a testator's own handwriting and signed by him or her.

WILL

A written document that sets out the directions for the management and distribution of a person's property following that person's death.

LEGAL MEMORANDUM

A written statement that is legally binding on the executor and the estate and must be prepared before the will and be referred to and incorporated into the will. A legal memorandum can be changed only if the will is changed.

ESTATE

All of the property, both real and personal, that someone has an interest.

MAUSOLEM

An above ground tomb.

CLEARANCE CERTIFACATES

Certificates from the Canada Revenue Agency that confirms that all the deceased's income tax returns have been filed and that any taxes, interest, or penalties have been paid.

LEGACIES

Gifts of money set out in a will.

PERSONAL REPRESENTATIVE

In some jurisdictions, the executor is termed the personal representative.

REVENUE RECEIPTS

Income generated by estate assets.

ANTI-LAPSE PROVISIONS

Legislation that permits a deceased beneficiary's heirs to take their inheritance where the beneficiary has predeceased the testator. In Ontario the anti-lapse provisions apply to a gift left to a beneficiary's child, grandchild, or sibling.

REVENUE OF DISBURSEMENTS

Money spent to maintain an income-generating property.

PRECATORY

Precatory requests or directions are an expression of the testator's wishes regarding his or her estate. These requests or directions are not legally binding.

CAPITAL RECIETS

Property coming into the estate.

CAPITAL DISBURSEMENTS

Property leaving the estate or expenses paid to maintain capital assets.

CY-PRIS DOCTRINE

Provision whereby a gift made in a will to a charity may be redirected by the court to another charity with purposes similar to those of the original charity where the original charity no longer exists.

BENEFICIARIES

Recipients of a gift made in a will or persons for whom trust property is held.

ACCOUNTS

Records of all monies and other personal and real property that enters and leaves the estate, along with records of investments made.

SURETY

Someone who promises to pay money if the trustee fails to carry out his or her duties properly.

ADMINISTRATOR

The administrator of an estate is a legal term referring to a person appointed by a court to administer the estate of a deceased person who left no will.

RESEALING

The application of the Ontario court seal to a certificate of a estate trustee with or without a will made in another province or territory, the United Kingdom, or British possession.

ANCILLARY GRANT

The court grant given where the estate trustee has a will and a court certificate form outside of Canada, the United Kingdom and any British possession.

CONSANGUINITY

The degree of relationship between persons descended from a common ancestor.

ESTATE TRUSTEE WITH A WILL

The executor named in a will.

CAPITAL GAIN

The increase in the value of the property from the date of purchase to the date of disposition.

RESIDUE

The part of the estate remaining after all legacies have been paid.

CUSTODIAN

The person appointed to have custody and care of minor children. Custodial rights include the authority to make decisions concerning the child's living arrangements, education, and health care.

GUARDIAN OF PROPERTY

The person appointed to manage someone else's person or property. For example a minor child needs a guardian of property.

IMPUGNER

The person trying to strike down a will.

PROPOUNDER

The person trying to uphold the will.

ESTATE PLANNING

The process of arranging one's affairs for his or her death or incapacity and setting out instructions regarding the management of his or her property upon incapacity or after death.

PER STRIPES

The process whereby a deceased beneficiary's direct lineal descendants are entitled, by representation, to equally share the original gift that the beneficiary was entitled to.

PASSING OF ACCOUNTS

The process whereby a trustee submits his or her records, statements, accounts, and receipts to the courts for approval.

ABATEMENT

The process whereby residue and gifts made under a will are reduced in order to pay estate creditors.

EQUALIZATION OF NET FAMILY PROPERTY

The process whereby spouses determine the net value of their property as of the date of marriage and the valuation date (in estate situations, the day before the date of death). If the value of the deceased's net family property is greater then the surviving spouse's, the surviving spouse may elect an equalization of net family property in place of a gift under a will or the application of intestacy distribution laws.

EXECUTION

The proper signing of a legal document, usually in the presence of a witness(es).

LAPSE

The situation that occurs where the beneficiary has predeceased the testator and an alternate beneficiary named in the will.

ESCHEAT

The situation where ownership of the deceased's property passes the the provincial government.

INTESTACY

The situation where someone dies without having a valid will.

LIFE INTEREST

The situation where someone is granted the use of property for the remainder of his or her life.

SPLIT WILLS

The situation where someone makes two valid, co-existing wills, only one of which will be submitted to the court for probate.

DEEMED DISPOSITION

The situation where the deceased is considered to have disposed of all of his or her property at the time of his or her death for income tax purposes.

DEVOLUTION

The situation where the executor dies, and his or her executor takes over the administration of the estate.

ADEMPTION

The situation where the subject of a gift is made in a will no longer exists at the date of death. For example, a testator leaves a car to his nephew in his will, but the car is sold before the testator's death.

UNDUE INFLUENCE

The situation wherein a testator was emotionally or physically coerced by someone to make a change in his or her will such that it no longer reflects the testators wishes.

TESTAMENTARY CAPACITY

The state of being mentally capable of making a will.

ISSUE

Those persons who have all descended from a common ancestor. The term "issue" is generally used to refer to a testator's or a beneficiary's descendants.

MILITARY WILLS

Wills made by members of the Canadian Forces on active service or by sailors at sea.