Wills, Trusts & Probate Admin: Key Terms

probate

***Process in which a decedent's will is proved valid; entire process of validating the will; appointing the personal representative; and distributing the decedent's estate. - Legal process by which a court determines who will inherit a deceased person's property and what the assets of the estate are

Post-mortem conception

- **A deceased man's sperm is used to conceive a child**

Equitable adoption

- **A doctrine that follows common law principles that a child may become "equitably" adopted by judicial declaration** - Arises when the parties hold themselves out as parent and child - Parties hold out as parent/child - The principle that a child may enforce in equity a promise to adopt him, at least to the extent that he will be given rights of inheritance with respect to the property of the person who made the promise

Advance Directive

- **Legal documents that allow you to spell out your decisions about end-of-life care ahead of time** - Written documentation that specifies medical treatment for a competent patient should the patient become unable to make decisions; also called a living will or health care directive. - A legal document designed to indicate a person's wishes regarding care in case of a terminal illness or during the dying process - a document stating a person's wishes about health care when that person cannot make his or her own decisions

same-sex marriage

- **Legal recognition of the marriage between two people of the same sex** - marriage between partners of the same sex - federally recognized marriage between members of the same sex; made legal in the United States in 2015 - a legally recognized marriage between two people of the same biological sex and/or gender identity

civil union

- **Legal recognition of the marriage-like partnership of two individuals** - a legally recognized union of a same-sex couple, with rights similar to those of marriage. - a public policy designed to extend some benefits to partners who are not legally married - a pair-bonded relationship given legal significance in terms of rights and privileges

Domestic partner registry

- **Registries that allow a jurisdiction to formally acknowledge domestic partnerships as valid relations ships with limited rights**

domestic partnership

- **Relationship between two individuals who live together and share a common domestic life but are not legally married or bound by a civil union** - two unrelated adults who share a mutually caring relationship, reside together, and agree to be jointly responsible for their dependents, basic living expenses, and other common necessities - legally recognized unions that guarantee only select rights to same-sex couples - Two unrelated adults who have chosen to share one another's lives in a relationship of mutual caring, who reside together, and who agree to be jointly responsible for their dependents, basic living expenses, and other common necessities

Defense of Marriage Act Defense of Marriage Act (DOMA) Defense of Marriage Act (1996)

- **Signed by President Bill Clinton this act specifically defines marriage in the federal government system as a legal union exclusively between one man and one woman** - Passed Congress in 1996; defined marriage as between only a man and women; however many states and companies extended benefits to same sex partners and many states legalized same sex marriages - Federal law defining marriage as man-woman & declaring that no state is forced to recognize same-sex marriage (unconstitutional exception to full faith & credit clause?) - States need not recognize same-sex marriages - In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word "marriage" means only a legal union between one man and one woman as husband and wife- 1996, Declares that states are not obligated to recognize any same sex marriages that might not be legally sanctioned in other states, defined marriage and spouse in heterosexual terms for federal law - (1996) Defines marriage as man-woman. No state is forced to recognize same-sex marriage - A law enacted by Congress in 1998 that allowed states to refuse to recognize gay marriages or civil unions formed in other jurisdictions. The Supreme Court ruled that DOMA was unconstitutional in 2013

Full Faith and Credit Clause

- **This clause ensures that judicial decisions in one state are recognized and honored in others states** - Constitution's requirement that each state accept the public acts, records, and judicial proceedings of every other state - Section of Article IV of the Constitution that ensures judicial decrees and contracts made in one state will be binding and enforceable in any other state - addresses the duties that states within the United States have to respect the "public acts, records, and judicial proceedings of every other state."

Uniform Transfer to Minors Act

- **Under this act, a small amount of personal property and no real property is left to a minor in the care of a custodian** - law similar to the Uniform Gifts to Minors Act that extends the definition of gifts to include real estate, paintings, royalties, and patents - Uniform Transfers to Minors Act. A law similar to the Uniform Gifts to Minors Act (UGMA) that extends the definition of gifts to include real estate, paintings, royalties, and patents - Uniform Transfer to Minor Act; law similar to the UGMA that extends the definition of gifts to include real estate, paintings, royalties, and patents

Collateral Descendant

- A descendant who is not direct, such as a niece or a cousin - Blood relatives who are not directly related such as aunts, uncles, and cousins

Bequest

- A gift of personal property by will (see legacy) (From the verb to: Bequeath)

Pretermitted Spouse

- A surviving spouse that was omitted from a will by the deceased spouse. - In most states, marriage after a will has no effect on the will. But under the UPC and in a few other states, the effect of marriage following the execution of a will is that the pretermitted spouse may claim an intestate share, unless: (1) it appears from the will that omission was intentional; or (2) T made other provision for spouse by transfer outside will and the intent that the transfer be in lieu of provision in the will is shown by statement of the testator, the amount of the transfer or other evidence.

Testamentary Trust

- A trust created by will; it comes into existence when the settlor/creator dies

Homestead Exemption

- Allows the family or head of household to characterize the family residence as the homestead

medical power of attorney

- At term used by some states to describe a document used for listing the person or persons to make health care decisions should a patient become unable to make informed decisions for self. - A legal document signed by a person who is giving another individual the power to make health care decisions for the first person if he or she becomes incompetent, unconscious, or unable to make decisions for himself or herself. - a legal document by which a person authorizes another to make life-or-death medical decisions on his or her behalf

Per Stirpes (By the Roots)

- Beneficiaries receive their distribution shares based upon the level of lineal descendant they are from their ancestor, the decedent

Pretermitted Children

- Children unintentionally left out of will - Children who were left out of their parent's estate planning - Born or adopted after execution of T's will and no provision is made for them in the will

lineal descendants

- Children, grandchildren, great-grandchildren, and so on of a testator - Offspring of a descendant

Elective Share

- Creates a situation in which a spouse may not be disinherited by his or her deceased spouse - Provision that gives a surviving spouse a share of most of the wealth of the decedent

General Legacy

- Dispositions of sums of money - A gift of a fixed amount of money from the general assets of the estate - A gift of a specific amount of money

Escheat

- Forfeiture of a decedent's property to the state in the absence of heirs - A person's estate passes to the state because there are no survivors or ascertainable kin to leave it to

Devises

- Gifts of real property

Anti-Lapse

- Prevents lapse by substituting the descendants of the predeceased beneficiary for the predeceased beneficiary - Prevents a gift from lapsing by substituting the beneficiary's issue for the beneficiary

Abatement

- Reduction in the sum of gifts to a beneficiary to pay the taxes and debts of the estate. - Decrease, Reduction - The ending, reduction, or lessening of something

Ademption

- The extinction or withdrawal of a legacy under a will by an act equivalent to revocation - The extinction or withdrawal of an inheritance because decedent did not own the property at the time of death - Satisfaction of a legacy by gift prior to testator's death

Fee Simple

- The highest interest in real estate recognized by the law; the holder is entitled to all rights to the property. - Total ownership of a property and is not subject to restrictions.

Testamentary Capacity

- The legal ability to make a will - The mental capacity, also known as sound mind, whereby the testator understands the nature of his or her property and the identity of those most closely related to him or her - The sanity (sound mind) requirement for a person to make a valid will

Testamentary Bequest

- a bequest is a testamentary gift of personal property - DEVISE and BEQUEST are the two terms used to refer to testamentary gifts. - While most state laws and courts do not really make a distinction between the terms "devise" and "bequest" anymore, some still do. - Testamentary gift is a gift made by will. Such gifts do - become effective until the death of the donor; the ownership of the gift is transferred to the donee only after the testator's death; there are two terms used to refer testamentary gifts, a devise and a bequest: - a DEVISE is where the gift is of real property (e.g., land) - a BEQUEST is where the gift is of personal property. - Testamentary gifts may be of three types: specific gifts, general gifts, and residuary gifts - 'devise' is used to refer to testamentary gifts of real property, and; - 'bequest' is used to refer to gifts of personal property (Today, most state courts do not make a distinction between the terms. However, there are states which still differentiate between the two)

per capita

- for each person; in relation to people taken individually - Surviving beneficiaries each receive an equal share

Real Property

- land and anything attached to it - physical property such as land and buildings - Any type of property that is immovable, fixed, or permanent. Also known as realty or real estate.

Tenancy for years

- leasehold interest for a specific period of time - This is a form of leasehold estate however, a person in possession of a "tenancy for years" has actual ownership of a property for a designated period of time.

tangible personal property

- personal property that can be touched, sensed, and moved. - personal property that can be touched and is moveable.

Right of Survivorship

- right of one joint tenant to ownership of property when the other joint tenant dies - the rights of surviving partners in a joint tenancy to divide the interests of a deceased partner - Upon the death of a joint tenant or tenant by the entirety the interest does not pass to the tenant's heirs but to the other join tenant(s).

In rem jurisdiction

A court's authority over property.

in personam jurisdiction

A court's authority over the individual involved in a lawsuit.

living will

A declaration that directs the kind of medical care a person wants in the event that person suffers from a terminal condition, or is in a persistent vegetative state.

Joint Tenancy

A form of joint ownership of property by two or more persons.

Health-care surrogate

A person named by the declarant to make all medical decisions in the event the declarant is unable to give consent.

Remainderman

A person who inherits or is entitled to inherit property upon the termination of the estate of the former owner.

Health-care proxy

A person who is authorized by state law to make health-care decisions for an individual who has not expressly designated a surrogate.

Probate Assets

All forms of property in a decedent's estate that require a probate court proceeding to distribute them to the proper beneficiaries or heirs.

community property

All property acquired by a husband or a wife during marriage that is not classified as separate property.

Personal Property

All remaining property that is not land, permanently affixed structures, or fixtures.

Residuary

All the property remaining after the testator has given all of his or her specifically named bequests and devises.

durable power of attorney

An agent that handles the principal's personal and financial decisions but not usually his or her medical decisions.

posthumous birth

An infant who is born subsequent to the death of the father or, in certain cases, the mother. At Common Law and by the laws of various states, governing Descent and Distribution, a posthumous child inherits from a deceased parent's estate as an heir provided that the infant is born alive following a gestation period that shows that the child was conceived prior to the death of the father who has died intestate. Under some statutes, it is necessary that the child be born within a ten-month period subsequent to the intestate father's death in order for the infant to be considered a posthumous child. Laws addressing a posthumous child are rapidly becoming obsolete as medical advances extend the time period over which Reproduction can occur. For example, sperm and eggs may be preserved in a frozen state past the lives of their donors. It is also possible to remove sperm or eggs, or perform a Caesarian section, after a person's death. Scholars and scientists anticipate the development of additional ways for genetic material to be preserved, and children to be born, after the death of the biological parent. These developments create new legal problems and are likely to necessitate changes for laws in several areas, including survivors' benefits, inheritance, and support.

Non-Probate Assets

Assets that are not distributed according to the the decedent's will nor by intestacy. They are not subject to the claims of the decedent's creditors, spouses, or children. Do not require any court proceedings to pass title to beneficiaries or heirs.

Principal

Authorizes another to act on his or her behalf concerning medical care.

Testamentary Benefits

Beneficiary under a will

DNRO

Declares that the patient does not want resuscitation efforts to be initiated if the patient suffers cardiac arrest or respiratory failure.

Pecuniary Bequest

Dispositions of sums of money. Also known as general legacies

Anatomical gifts

Donation of all or part of a human body upon death.

Ancillary Administration

Estate administration that occurs in the state where property is located if it is not located with the domiciliary state.

Demonstrative Legacy

Gift of a specific sum of money that comes from a specific source.

Legacies

Gifts of personal property & synonymous with Bequests

Death with Dignity Act

In 1994, Oregon voters adopted this act which allows terminally-ill Oregonians to end their lives through the voluntary self-administration of lethal medications, expressly prescribed by a physician for that purpose.

confidentiality

Information regarding documents, correspondence, and consultations that the client tells the lawyer and her staff.

Uniform Laws

Laws proposed by the National Conference of Commissioners on Uniform State Laws. The goal of the National Conference is to compile uniform laws on various subjects that would have the effect of standardizing and modernizing the law in those subject areas.

Testamentary letters

Letters of administration that are proof that the personal representative needs to administer the estate.

Fixtures

Objects that were once personal property but have become permanently attached to land or buildings.

Tenancy in Common

Occurs when any of the four unities (time, title, interest, possession) are missing. Does not have the benefit of right of survivorship.

Satisfaction

Occurs when the testator gives the gift to the beneficiary before the testator dies.

Affinity

People who are related by marriage such as in-laws, stepchildren, stepparents, etc.

Agent

Person authorized by the principal to handle their medical care or treatment.

intangible personal property

Personal property that cannot be touched i.e. stocks, checks, etc.

Intestate Succession

Process by which the property of a person who dies without a valid will is distributed.

Estate administration (probate proceedings)

Process in which a decedent's assets are collected, debts are paid, and the net worth is distributed.

abatement

Process of selling estate property to pay debts.

POLST (Physicians Orders for Life Sustaining Treatment)

Program designed to ensure that seriously ill person's wishes regarding life-sustaining treatments are known, communicated, and honored across all health-care settings.

owned severally; owned in severalty

Property that is owned solely by one person, either an individual person or an individual company.

rules of professional conduct

Provide a foundation of ethical rules, either inspirational or mandated, that lawyers and their staff should or must follow.

Reversion

Right of a grantor to the return of a property upon the termination of a life estate.

Pay-on-Death Bank Account (POD)

Savings accounts that a depositor (trustee) opens for the benefit of another (beneficiary).

Life Estate

The right of a person (life tenant) to use a property until death.

UTMA/UGMA

Uniform Transfer/Gift to Minor Act

Right of Survivorship

Upon the death of one tenant, his or her interest passes automatically to the surviving joint tenants.

testamentary gift

a gift made through a will

Tenancy by the Entirety

form of joint tenancy ownership for husband and wife

domicile

legal home as opposed to a residence

ethics

moral principles that govern a person's or group's behaviors

ancillary jurisdiction

obtaining the proper in reim jurisdiction over the decedent's estate

service of process

procedure used to give notice to the defendant about a lawsuit

venue

proper forum in which a case should be filed

Probate Assets

the property of the decedent that must be distributed through a probate proceeding in a court of law