Wills Test #1 Terminology Fall 2024

Letter of instructions

A written document that identifies and explains a person's funeral and burial plans and is readily accessible for the testator's review and modification. After planning the funeral with a mortician (including costs and arrangements for a casket, church service, and reception) and purchasing a burial plot, individuals can insert these plans into a letter of instructions and make them known to their family, physician, religious adviser, and future personal representative by giving them copies of the letter.

Deed

A written document that transfers title to or an interest in real property from one person to another person or persons.

Living will

A written expression of a person's wishes to be allowed to die a natural death and not be kept alive by heroic or artificial methods.

Living trust

Also called an inter vivos trust—inter vivos is Latin for "within one's life"—is a trust that is created and becomes effective during the lifetime of the trustor(s) [also called settlor(s)]. Living trusts commonly provide that trustors receive the benefits of the trust during their lifetimes; a distribution to the beneficiaries occurs following the death of the last trustor to die.

Consanguinity

"Blood relation"; the quality of being descended from the same ancestor as another person.

Per Capita

"By head"; succession is to be determined by the number of people in a class or group and all members of a class or group inherit equally.

Dower and curtesy

A surviving spouse's right to receive a set portion of the deceased spouse's estate -- usually one-third to one-half. Dower (not to be confused with a dowry) refers to the portion to which a surviving wife is entitled, while curtesy refers to what a man may claim. Dower and curtesy have been replaced in most states by including the surviving spouse as an heir in the line of intestate succession and by providing an elective share to the surviving spouse who does not take under the decedent's will.

Revocable Living Trust

A trust created by a written declaration during the lifetime of the creator. The fact that this type of trust is revocable means that the trustor reserves the right to amend or revoke the trust during his or her lifetime.

Inter Vivos Trust

A trust that is created and becomes effective during the lifetime of the trustor(s) [also called settlor(s)]. A single person can be the trust settlor/creator, the trustee, and the beneficiary of the same trust.

Pour-over will

A will drafted for a person who has already executed a living trust that leaves all remaining property to the trust.

Simple will

A will that does not contain tax planning language.

Nuncupative will

A will that has been delivered orally to witnesses, as opposed to being written down and executed with the usual formalities.

Holographic will

A will that is written completely in the handwriting of the testator and signed and dated by the maker. Witnesses may or may not be required, depending on state law.

Codicil

A written amendment to a will that changes but does not invalidate a will.

Domiciliary administration

The administration of an estate in the state where the decedent was domiciled at the time of death.

Nondurable power of attorney

The authority of a person to act on behalf of the principal under this type of power of attorney ends when a specified event occurs.

Springing power of attorney

The authority of a person to act on behalf of the principal under this type of power of attorney is triggered by the occurrence of a specified anticipated event. It is not effective upon signing; the power of attorney is effective upon the happening of the specified event (when it springs into effect).

Principal

The capital or property of a trust, as opposed to the income, which is the product of the capital. Also can refer to a person who directs and agent to act for the principal's benefit subject to the principal's direction and control under a power of attorney.

Checklist for family data

The checklist should include testator's name, address, age, marital status, mental and physical health, and the mental and physical health of the testator's spouse, and the full names, addresses, and phone numbers of participants (maker of the will, beneficiaries or devisees, executor, witnesses, guardians, and trustee, if any), financial status of testator, testator's spouse, and family, family affairs including family tensions, disputes, and any advancements.

Community property

The concept that all income and assets acquired by a husband and wife during the marriage, with a few exceptions, belong equally to the husband and wife. Specific gifts and inheritances acquired by one spouse during the marriage or owned prior to the marriage are considered separate property. Separate property is excluded from community property valuation unless it can be shown that the owning spouse commingled his or her separate property with the community property or made a gift of the separate property to the community.

Disinheritance

Disinheritance by will is the act by which the testator of an estate specifically deprives another, who would otherwise be the testator's legal heir, from receiving the estate.

Legatee

In orthodox terminology, the recipient of a gift of money according to a will.

Devisee

In orthodox terminology, the recipient of real property according to a will. Under the Uniform Probate Code (UPC), this term can refer to a person who receives a gift of either real or personal property.

Quitclaim deed

A deed to real property that transfers to the grantee only whatever interest the grantor has in the property.

Fiduciary Duty

A duty or responsibility that arises out of a position of loyalty and trust.

Administratrix

A female appointed by the court to administer the estate of an intestate decedent.

Executrix

A female nominated in a will to carry out the terms of the will.

Residuary clause

A standard clause or provision of a will that disposes of the remaining assets of the decedent's estate after all debts and gifts in the will are satisfied.

Attestation clause

A statement by the witnesses in a will that they have attested and subscribed the testator's signature.

Simultaneous death clause

A statement in a will that determines the distribution of property in the event there is no evidence as to the priority of time of death of the testator and another, usually the testator's spouse.

Exordium clause

A beginning or introductory clause in a will that declares the testator's intent and capacity to create a will, the intent to make the document the testator's last will, and the location of the testator's principal residence or domicile.

Demonstrative Legacy

A bequest of a certain sum of money with a direction that it be paid out of a particular fund.

Affinity

A close relationship based on marriage rather than on common ancestry.

Persistent vegetative state (PVS)

A condition of patients with severe brain damage in whom a coma has progressed to a state of wakefulness without detectable awareness.

Condition precedent

A condition or specific event that must occur before an agreement or obligation becomes binding.

Condition subsequent

A condition subsequent is one in which an estate that is already vested in a named devisee will not continue to be vested unless a specified event occurs or if a condition is breached in the future. If it does not occur or the violation or breach of a specified condition occurs, the devisee will be divested of the estate and will not continue to receive the interest.

Fixture

A fixture is real property that may once have been personal property but now is permanently attached to land or buildings. An example of a fixture that grows on land is a tree; however, growing crops that are annually cultivated for sale like corn, wheat, and vegetables are not fixtures. They are considered to be personal property. Carpeting nailed to the floor and a built-in dishwasher are examples of fixtures in buildings. State courts apply three tests—annexation, adaptation, and intention—to determine if personal property has been converted into a fixture. Annexation means that the personal property has been affixed or annexed to the real property. Adaptation means that the personal property has been adapted to the use or purpose of the real estate. The court asks whether the property is necessary or beneficial to the function or enjoyment of the real estate. In most states, however, the intention of the person who annexed the personal property to the real property has been the controlling test that determines the existence of a fixture.

Tenancy by the entirety

A form of property ownership shared by husbands and wives where both have the right to the entire property and, upon the death of one spouse, the surviving spouse enjoys title to the whole property by right of survivorship. One benefit of this form of property ownership is that the surviving spouse enjoys a stepped-up basis upon the death of their spouse (their tax basis for the property is increased to reflect the value of the property at the time of the decedent's death). Tenancy by the entirety is only recognized in certain states.

Joint tenancy

A form of property ownership where each party owns an undivided interest in the entire property and a right to use and enjoy all of it, but with a survivorship interest, which means that when one joint tenant dies, the other (or others) have title to the whole property. This is also commonly referred to as a "joint tenancy with right of survivorship," but there is always a right of survivorship where there is a joint tenancy. While alive, each joint tenant has a right of severance, which can be accomplished by a gift or sale transferring an interest in the property. In order for a joint tenancy to be created, common law requires unity of time, unity of title, unity of interest, and unity of possession.

Remainder

A future estate in real property that takes effect on the termination of a prior estate created by the same instrument at the same time.

Specific Legacy

A gift by will of a particular article of personal property.

Conditional bequest

A gift in a will that takes place only if a particular event has occurred by the time the maker of the will dies.

Inter vivos gift

A gift made during the grantor's lifetime.

General Legacy

A gift of money out of the general assets of the estate.

Devise

A gift of real property under a will.

Power of attorney

A legal document that authorizes another person to act as the grantor's attorney-in-fact and agent; execution before a notary public is nearly always required.

Issue

A legal term that includes a person's children or other lineal descendants such as grandchildren and great-grandchildren in the direct bloodline.

Administrator

A male appointed by the court to administer the estate of an intestate decedent.

Executor

A male nominated in a will of a decedent to carry out the terms of the will as a personal representative of the estate.

Testator

A man who makes or dies with a valid will.

Ancillary administrator

A person appointed by the court to handle the affairs of a decedent in a foreign state.

Fiduciary

A person in a position of loyalty and trust, such as an executor, administrator, guardian, conservator, attorney-in-fact, health care agent, trustee, or lawyer; also a person to whom property or power is entrusted for the benefit of another.

Estate plan

A plan made to provide for the maker's physical and financial needs during lifetime, as well as the distribution of their estate upon death.

Spendthrift Clause

A provision in a trust or will that states that if a prospective beneficiary has pledged to turn over their inheritance to a third party, the trustee or executor shall not honor such a pledge.

Delay clause

A requirement in the simultaneous death statute of most states that requires a person to survive the testator by 120 hours to qualify as a surviving beneficiary. The clause is used to prevent an estate from being taxed twice in the event the beneficiary and the testator die as the result of a common disaster.

Chose in action

A right to bring a civil lawsuit to recover money damages or possession of personal property.

Memorandum (or personal property memorandum)

A written list or statement of tangible personal property signed and dated by the testator and incorporated by reference in the will to dispose of items of tangible personal property not otherwise specifically disposed of by the will. This list or statement may not include money or property used in trade or business. The list or statement must be either in the testator's handwriting or signed by the testator. It must also describe the items and beneficiaries with reasonable certainty. The writing may be prepared before or after the testator executes the will. (S.C. Code Ann. § 62-2-512).

Health care proxy (also called the health care power of attorney or durable power of attorney for health care or medical power of attorney)

A written statement authorizing an agent or surrogate to make medical treatment decisions for another in the event of the other's inability to do so. This document gives the agent the right to obtain and disclose the principal's medical records.

Fee simple

Absolute title to land, free of any other claims against the title. One can sell fee simple property or pass it to another by will or inheritance. When you purchase a piece of property pursuant to a warranty deed, you own the property in fee simple.

Real property

All land, structures, firmly attached and integrated equipment, anything growing on the land, and all interests in the property. It is immovable, fixed, or permanent. Examples: house, building, crops, mountains, trees.

Personal property

All movable assets, or things, that are not real property. It includes tangible objects that you can touch and feel, such as a doll or a basketball, as well as intangible items that do not have a physical form, such as a patent or a copyright.

Ancillary probate

An additional probate proceeding conducted in a state other than the main probate proceeding in the decedent's state of domicile.

Advancement

An advancement is money or property given by a parent to a child in anticipation of the share the child will inherit from the parent's estate. Prior to the parent's death, it is given to the child and is intended to be deducted from the share of the parent's estate the child eventually receives after the parent's death.

Property guardian

An individual or trust institution appointed by a court to care for an manage the property of a minor or an incompetent person.

Life estate

An interest in property given to a person by deed or by gift under a will with the idea that that person's interest in the property will cease upon death. The property may then be passed to a third person, the remainder beneficiary, or in the alternative, the grantor may retain a right of reversion, meaning that upon the death of the person with the life estate, the property will revert back to the grantor or the grantor's heirs. Life tenants while living may convey their interest in the property by sale or gift to a third person.

Chattel

Any item of personal property.

Property

Anything subject to ownership; classified as real property or personal property.

Digital assets

Assets that are stored electronically.

Per Stirpes

By roots"; succession by right of representation, share and share alike; children inherit in equal shares from a deceased parent.

Commingling

Combining community and separate property.

Escheat

Estate passes to state if a decedent dies intestate and there are no living relatives qualified to inherit pursuant to a state's intestacy statute; it only takes place when there are no heirs, descendants, or named beneficiaries to take property upon the death of the last known owner.

Terminating Event

Event that triggers the termination of a trust.

Being "of sound mind"

Having the mental ability to make a will.

Appointment of personal and/or property guardian

Part of a will that names the person whom the testator wishes to care for his/her children in the event of the testator's death.

Nonprobate property

Real and personal property owned by the decedent at the time of death that cannot be transferred by will or inheritance. These assets pass to the intended beneficiary by operation of law independent of the provisions of a will or a probate proceeding.

Intestate succession statutes

State laws that provide for the descent and distribution of property to those whom a decedent would probably have chosen if the decedent had made a will

Ambulatory

Subject to change or revocation any time before death.

Defeasance

The divestment of a devisee's ownership of property by operation of law upon the nonhappening of an event or the violation of a condition subsequent.

Partition

The division of real property held by joint tenants or tenants in common into separate portions so that the individuals may hold the property in severalty.

Personal Representative

The executor or administrator of a deceased person.

Lapse

The failure of a gift made in a will as a result of the person to whom the gift was intended predeceasing the person making the will.

Legal title of a trust

The form of ownership for a trust property held by the trustee, giving the trustee the right to control and manage the property for another person's benefit.

Legacy

The gift of money according to a will.

Conservator

The guardian and manager of property left to minor or incompetent children.

Probate

The process of proving a will is valid and thereafter administering the estate in accordance with the terms of the will and the general process of administration of estates of dead persons, including those without wills, with court supervision.

Estate (also called gross estate)

The property accumulated during a person's lifetime and owned at the time of death.

Testamentary Capacity

The sanity (sound mind) requirement for any person making a valid will.

Self-proving will

The testator and the witnesses sign in the presence of a notary public, which eliminates the necessity of having the witnesses appear before the probate court to testify that the will was signed by the testator who declared that the testator was of sound mind and was making their last will freely.

Probate Assets

These assets require a court's intervention to pass title to the intended beneficiary under the provisions of a will or by way of a probate proceeding.

Tenancy in common

Title taken to property by two or more persons in which each person has an undivided interest in the property and all have an equal right to use the property. Parties to a tenancy in common are known as "cotenants." Cotenants are each entitled to use all of the property, so one cotenant cannot force another cotenant to pay rent. Further, if a parcel of real property owned in this manner is rented out to a non-cotenant, the rent must be divided among the cotenants in proportion to their ownership interest.

Attest

To bear witness; to affirm or verify as genuine, e.g., the witness who attests the testator's intent, capacity, and signature on a will.

Testate

To die with a valid will.

Intestate

To die without a valid will.

Execute

To perform or complete, i.e., to write and sign a will.

Subscribe

To sign one's name generally at the end of a will.

Beneficiary

Traditionally, a beneficiary is a person who is entitled to receive property under a will or a person who has already received the property. Under common law, a beneficiary received the personal property of the decedent by will, but today, the term is used to describe a person entitled to any gift (real or personal property) under a will. Therefore, a beneficiary can include a devisee or legatee.

Testamentary Trusts

Trusts created under a will.

Joint tenants

Two or more persons who own or hold equal, undivided interests in property with the right of survivorship

Heir

Under common law, an heir was a person entitled by statute to receive the real property of a decedent who died intestate. Today, an heir includes persons who are entitled by statute to receive or have already received any gift (real or personal property) of the intestate. In addition, although technically incorrect, the popular use of the word heir has also been expanded to include persons who receive any gift through a decedent's will.

Children

When used in a will, "children" includes a natural marital child, a nonmarital child, and an adopted child. It does not automatically cover a stepchild.