Chapter 1 (Wills Trusts and Estate)

Public Trust

A charitable (public) trust is an express trust established for the purpose of accomplishing social benefit for the public or the community. Also, it is the only type of trust that can last indefinitely.

Letter of instructions

A document that specifies the testator's instructions for organ donation and funeral and burial plans. It also can be an all-inclusive checklist of various personal and estate information to help the family and personal representative locate and identify property and documents necessary to administer the estate.

Fiduciary duty

A duty or responsibility required of a fiduciary that arises out of a position of loyalty and trust. In the law of trusts, it is a duty that a trustee owes to the beneficiary of a trust.

Administratrix

A female personal representative appointed by the probate court to administer the decedent's estate when there is no will.

Conservator

A fiduciary; an individual or trust institution appointed by a court to care for and manage property of an incompetent person.

Statutes

A law passed by a state or federal legislature. Statutory law is one source of law, i.e., state statutes, federal statutes. State and federal governments publish books of law that are called statutes.

Informal probate

A limited or unsupervised probate proceeding in which notice to interested persons is not required.

Administrator

A male personal representative appointed by the probate court to administer the decedent's estate when there is no will.

Executor

A man named in the will by the maker to be the personal representative of the decedent's estate and to carry out the provisions of the will. Also can be a corporation, e.g., a bank.

Testator

A man who makes and/or dies with a valid will.

Ward

A minor or incompetent person placed under the care and supervision of a guardian by the probate court.

Incompetent person

A person under legal disability, e.g., a mentally incapacitated person.

Personal representative

A person who administers the decedent's estate and either carries out the terms of the will or follows the appropriate intestate succession statute in distributing the estate. If the personal representative has been named in the will to carry out such liaison duties, he is called an executor (a woman is an executrix); if the court appoints the personal representative because no valid will exists, he is an administrator (administratrix, in the case of a woman).

Settlor

A person who creates a trust; also called donor, grantor, creator, or trustor.

Adoptive parent

A person who legally adopts another individual, usually a child.

formal probate

A probate proceeding conducted by the probate court in the administration of a decedent's estate, with or without a will, which requires court supervision and notice to interested persons.

Trust

A right of property, real or personal, held by one person (trustee) for the benefit of another (beneficiary). The trustee holds legal title to the property; the beneficiary holds equitable title.

Inter vivos or living trust

A trust created by a maker (settlor) during the maker's lifetime. It becomes operational immediately after the trust is created.

Testamentary trust

A trust created in a will. It becomes operational only after death.

Transfer-on-death dead (also called beneficiary deed)

A type of deed, properly executed and recorded that allows the transfer of real property to a designated beneficiary without probate. The transfer does not take effect until the death of the owner.

Uniform probate code (UPS)

A uniform law available for adoption by the states to modernize and improve the efficiency of estate administration. To help alleviate the confusion of having 50 states with different procedures for handling decedents' estates, the National Conference of Commissioners on Uniform State Laws and the American Law Institute prepared model uniform statutes and recommended their adoption by the states. The Uniform Probate Code is one such model. These codes are not the law of a particular state until that state adopts them.

Holographic will

A will drawn and signed entirely in the maker's own handwriting that often requires no witnesses. State laws establish the conditions for a valid holographic will.

Testament

A will.

Executrix

A woman named in the will by the maker to be the personal representative of the decedent's estate and to carry out the provisions of the will.

Testatrix

A woman who makes and/or dies with a valid will.

Codicil

A written amendment to a will that may modify or revoke provisions in it but does not cancel (invalidate) the will. A codicil must be executed with the same formalities as a will.

Pro Rata

According to a certain rate or percentage

Legal capacity

Age at which a person acquires capacity to make a valid will, usually 18.

Bypass trust

An estate planning device whereby a deceased spouse's estate passes to a trust as a life estate for the surviving spouse rather than entirely to the surviving spouse, thereby reducing the likelihood that the surviving spouse's estate will be subject to federal estate tax.

Property gaurdian

An individual or trust institution appointed by a court to care for and manage the property of a minor or an incompetent person. The same individual can be both personal and property guardian and is then called simply the guardian.

Personal guardian

An individual or trust institution appointed by a court to take custody of and care for a minor or an incompetent person.

Apportionment clause

Clause in a will that allocates the tax burden among the residuary estate and the beneficiaries of the will.

Beneficiary (of a trust)

During the existence of the trust, the person or institution holding equitable title to whom the trustee distributes the income earned from the trust property. When the trust terminates, the trustee conveys legal title to the property held in trust to the beneficiary or to some other person designated by the settlor (grantor) by a deed (inter vivos trust) or by a will (testamentary trust).

Estate Plan

Estate plan- An arrangement of a person's estate using the law of wills, trusts, tax, insurance, and property to gain maximum financial benefits for the disposition of a person's assets during life and at death.

Forced share statute

Forced heirship or elective share. The spouse's statutory right to choose a share of the decedent spouse's estate instead of inheriting under the provisions of the decedent's will.

Beneficiary (of a will)

In the terminology of wills, a person to whom the decedent's property is given or distributed; or the orthodox term for a person or institution to whom the maker of a will gives personal property through the will.

Joint tenancy

Ownership of real or personal property by two or more persons with the right of survivorship.

Real Property

Realty or real estate. Land and generally whatever is built or growing on or affixed (permanently attached) to land. It includes land, buildings, and fixtures. 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 on land is a tree. In a building, a fixture could be the carpeting nailed to a floor, a built-in dishwasher, and the like.

Ambulatory

Revocable and subject to change

Execution of a valid will

The acts of the testator who writes and signs the will and the two or more witnesses who attest and sign it to establish the will's validity.

Principal

The capital or property of an estate or trust, as opposed to the income, that is the product of the capital. Also, a person who authorizes another (called the agent) to act on the person's behalf.

Probate court

The court that has jurisdiction over the probate of wills, the grant of administration, and supervision of the management and settlement of the estates of decedents, including the collection of assets, the allowance of claims, and the distribution of the estate. In some states, probate courts (also called surrogate courts, orphans' courts, or courts of chancery) have jurisdiction over the estates of minors, including the appointment of guardians and the settlement of their accounts, and the estates of incompetents, habitual drunkards, and spendthrifts.

Legal Title (of a trust)

The form of ownership of trust property held by the trustee giving the trustee the right to control and manage the property for another's benefit, i.e., the holder of the equitable title.

Will

The legally enforceable written declaration of a person's intended distribution of property after death.

Intestate succession

The manner in which a decedent's property will be distributed when death occurs without a valid will, determined by state law.

Tenancy in common

The ownership of an undivided interest of real or personal property by two or more persons without the right of survivorship. Each person has the right to hold or occupy the whole property in common with the other co-tenants, and each is entitled to share in the profits derived from the property. Unlike a joint tenancy, when a tenant in common dies, the decedent's interest goes to an heir or as directed in a will.

Disposition

The parting with, transfer of, or conveyance of property.

Gaurdian

The person or institution named by the maker of a will or appointed by the court when there is no will to care for the person and/or property of a minor or a handicapped or incompetent person.

Trustee

The person or institution named by the maker of a will to administer property for the benefit of another (the beneficiary) according to provisions in a testamentary trust or by the settlor of a trust in an inter vivos trust.

Legatee

The person who receives a gift of personal property under a will.

Residuary estate (also called the residue of the estate)

The remaining assets (residue) of the decedent's estate after all debts have been paid and all other gifts in the will are distributed.

Equitable title (of a trust)

The right of the party who holds the equitable title or beneficial interest to the benefits of the trust. The party has the right to have the legal title transferred to him.

Testamentary capacity

The sanity (sound mind) requirement for a person to make a valid will. That measure of mental ability that is recognized in law as sufficient for the making of a will.

Surviving spouse

The traditional meaning/usage of wife or husband based on legal marriage and expanded in some states to include same-sex conjugal couples.

Sound mind

To have the mental capacity (ability) to make a valid will.

Heir

Traditionally, a person, including a spouse, who is entitled by statute to the real property of an intestate. Today, a person entitled to any gift (real or personal property) of the intestate or in the decedent's will.

Tenants in common

Two or more persons who own property in a tenancy in common.

Fiduciary

one that holds a fiduciary relation or acts in a fiduciary capacity.

Domiciliary administration

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

Domicile

the place where you live.