Probate Legal Glossary
Many legal or technical terms may arise in probate that may not be familiar to the average person. Furthermore, some terms with common language meanings take on different meanings in a probate context. This glossary aims to provide more clarity about the terms used to describe probate on this site and elsewhere.
A
Ademption – a gift made in a will that fails because the will maker no longer owns the property
Administration of an estate – the process of managing a decedent’s estate after death and distributing the estate’s assets to beneficiaries and heirs
Administrator – an individual appointed by a probate court to manage the decedent’s estate after death, sometimes used interchangeably with Executor
Affidavit – a sworn statement given under oath or affirmation, often in front of a notary public
Age of majority – the age at which an individual gains the rights of an adult, age 18 in most states
Alternate beneficiary – a beneficiary designated to inherit only if the primary beneficiary does not or cannot inherit
Ancillary probate – a probate proceeding in a state in which the decedent owned property but was not domiciled
Annuity – a financial product for which an individual pays premiums in exchange for regular payments at a later date
Antilapse statute – a state law that provides that property intended for a deceased beneficiary may pass to that beneficiary’s heirs under certain circumstances
Appraisal – an opinion of an asset’s market value, usually given by a professional or expert
Attestation – the act of witnessing or certifying something, such as another’s signature on a legal document
Augmented estate – used to calculate the share of an estate a surviving spouse may claim; generally the sum of all of the deceased spouse’s property (minus exemptions and debts), the value of large gifts the decedent made shortly before death, and all of the surviving spouse’s property
B
Beneficiary – an individual or entity designated in a legal document, such as a will, to receive assets
Bequeath – to leave property as a gift in a will
Bequest – a gift of property made in a will
Bond – a policy that protects beneficiaries and heirs from any loss to the estate caused by an executor, administrator, or personal representative who steals or squanders estate funds; may be referred to as an “executor bond” or a “probate bond”
C
Capacity – having the mental ability, often related to legal authority
Capital gains tax – a tax imposed by the federal government and sometimes by states on the profits from the sale of certain assets
Certified copy – a copy guaranteed by a court or agency to be an exact copy of the original, often including an endorsement, seal, or certificate
Class – a group of people who will inherit property
Codicil – a document that adds to or modifies a will
Collateral descendant – an individual indirectly descended from an ancestor, such as a cousin or niece
Community property – a type of property co-ownership only available to married couples in some states, may include right of survivorship
Contestant – an individual who contests , such as a will or a trust
Contingent beneficiary – see Alternate beneficiary
Corpus – property held in a trust (also called “principal”)
Creditor – an individual or entity to whom money is owed
Custodian – an individual designated to manage a minor’s inherited property, often under the Uniform Transfers to Minors Act
D
Decedent – an individual who has died
Deed – a document that transfers real estate
Descendant – may be defined by state law, usually an individual’s children, grandchildren, and so on
Devise – a gift of property in a will, or to leave property as a gift in a will, sometimes only referring to real estate
Devisee – an individual who inherits property under a will, sometimes only referring to real estate
Discharge – to release from responsibility
Disclaim – to refuse a gift left after death
Domicile – an individual’s principal and permanent place of residence
Dower and curtesy – somewhat outdated terms that refer to the right of a surviving spouse in some states to receive a certain portion of their deceased spouse’s property if they were not left at least that certain portion in estate planning documents
E
Elective share – the share of a deceased spouse’s property that a surviving spouse has the right to claim under state law
Encumbrance – debt attached to a certain asset, such as a mortgage on a house
Equity – the market value of an asset minus any debt on the asset
Escheat – to transfer to the state, usually to transfer a decedent’s assets to the state when no heirs are identified
Estate – an individual’s property
Estate tax – a tax imposed by the federal government and sometimes by states on the net value of a decedent’s estate before distribution
Executor – an individual appointed by a probate court to manage the decedent’s estate after death, often because they were designated in a will to administer the estate
Executrix – a somewhat outdated term for a female executor
Expenses of administration – the costs associated with probating an estate, including attorneys’ fees, court fees, and appraisal costs
F
Failed gift – see Lapsed gift
Fair market value – the value of an item on the open market
Federal estate tax – see Estate tax
Federal gift tax – see Gift tax
Fiduciary – an individual or institution that manages the property of another and is bound by a legal standard of care
Forced share – see Elective share
Funding a trust – the act of transferring property into a trustee’s name
G
General bequest – a gift of money made in a will
Gift tax – a tax imposed by the federal government and sometimes by states on the value of large gifts
Grantor – an individual who creates a trust (also called a “settlor”)
Gross estate – the total fair market value of each asset in an estate
Guaranteed signature – a signature witnessed by someone qualified to guarantee signatures
Guardian – an individual appointed by a will or by a court to assume responsibility for an incompetent adult or minor child
Guardian of the estate – see Property guardian
Guardian of the person – see Personal guardian
Guardianship – a legal right given to an individual responsible for the care of another, see Guardian
H
Heir – an individual who inherits property under state law rather than a will
Holographic will – a signed but unwitnessed will (not accepted in all states)
I
In terrorem clause – see No-contest clause
Incapacity – the lack of legal ability to act
Income in respect of decedent – income the decedent would have received had they been living
Incompetence – the lack of ability to manage one’s own affairs
Independent executor – an executor who is permitted by law to act as an executor without court intervention
Inheritance tax – a state tax imposed on property an heir or beneficiary inherits from a decedent’s estate
Insolvent estate – an estate with more debts than assets
Intangible property – assets that do not have a physical presence, such as intellectual property
Inter vivos trust – see Living trust
Intestate – to die without a will or other estate planning documents providing for the distribution of property
Intestate succession – the rules of inheritance under state law in the absence of a valid will or other estate planning document providing for the distribution of property
Inventory – a list of all property in an estate
Issue – may be defined by state law, usually the direct descendants of an individual, including children and grandchildren
J
Joint tenancy – a type of property co-ownership with right of survivorship in which a surviving co-owner automatically inherits the property upon the decedent co-owner’s death
L
Lapsed gift – a gift made in a will to an individual who has died or is otherwise unable to inherit where no alternate beneficiary is named
Lawful issue – may be defined by state law, usually the direct descendants of a married couple
Legacy – a gift of property made in a will
Legatee – an individual who inherits a gift of property under a will
Letters of administration – a legal document issued by a court that gives an estate administrator (such as an executor) the right to control a decedent’s assets
Letters of authority – see Letters of administration
Letters testamentary – see Letters of administration
Lien – a creditor’s right to take an asset if its owner does not pay a debt
Life beneficiary – an individual with the right to use certain property for their lifetime, but not the right to transfer that property after death
Life estate – the right to use certain property for life only
Lineal descendant – an individual directly descended from an ancestor, such as a child or grandchild
Living trust – a trust created for the benefit of another party during a grantor’s lifetime (also called an “inter vivos trust”)
M
Marital deduction – a tax provision that allows a married individual to leave property to their surviving spouse without incurring federal estate tax
Marital property – property acquired during the course of a marriage, the opposite of separate property
Minor – a child under the age of 18
N
Next of kin – an individual’s closest living relatives
No-contest clause – a provision in a will that provides that an individual who challenges the will’s validity and fails will be disinherited (also called an “in terrorem” clause)
Non-probate transfer – the transfer of property outside the probate court
Nuncupative will – an oral will or verbal instructions for the distribution of the individual’s property (only accepted in a few states under narrow circumstances)
P
Payable-on-death (POD) – a designation that names a beneficiary to inherit the relevant property without probate
Per capita – the equal division of property between surviving heirs or beneficiaries in a group if one heir or beneficiary has died
Personal effects – may be defined by state law, usually items that the decedent wore or carried
Personal property – any asset except real property
Personal property memorandum – a document referred to in a will that lists the testator’s tangible personal property and the desired distribution of that property
Personal representative – an individual appointed by a probate court to manage the decedent’s estate after death, sometimes used interchangeably with Executor
Per stirpes – see Right of representation
Petition – a legal document that requests something from a court
Posthumous child – a child born after the death of their parent
Pot trust – a trust with more than one beneficiary that gives the trustee discretion to distribute funds (also called a “sprinkling” trust)
Pour-over will – a will that leaves some or all of an estate’s assets to a trust
Prenuptial agreement – an agreement made before marriage that dictates the ownership and management of certain property (also called a “premarital” agreement)
Pretermitted child – a child omitted from a will
Probate – the process of administering an estate, sometimes used to describe the process of proving the validity of a will
Probate court – a state court with the authority to supervise legal probate proceedings
Probate estate – the decedent’s property that passes through probate
Property guardian – an individual given the authority to manage a minor child or incompetent adult’s property
Public administrator – a probate administrator hired by a probate court if no relatives or creditors of an estate can assume the role of administrator
Q
Quasi-community property – property acquired outside of a community property state that would have been community property if it had been acquired in a community property state (also called “deferred marital property”); quasi-community property is treated as community property, see Community property
R
Real property – real estate
Recording – the process of filing a document, such as a copy of a deed, with the land records office
Residence – the place an individual lives, compare to Domicile
Residuary beneficiary – an individual left all remaining property under a will not specifically left to another beneficiary or through another method
Residuary estate – all remaining property subject to a will but not given to a specific beneficiary (also called “residue”)
Revocable trust – a trust that the grantor may change or retract
Right of representation – a way of dividing property in which the children of a deceased beneficiary or heir inherit their parent’s share
Right of survivorship – a characteristic of jointly owned property under which a surviving co-owner automatically inherits the property upon the decedent co-owner’s death
S
Schedule – a list of all property in a trust
Schedule K1 – an IRS form used to report a beneficiary’s share of an estate or trust’s income, credits, and deductions
Secured creditor – a creditor with a security interest in certain property
Security interest – an interest giving a creditor the right to seize certain property if an individual does not repay a debt
Seized of – a somewhat outdated term for “having possession of”
Self-proving affidavit – a sworn statement certifying that a will was properly executed (not accepted in all states)
Separate property – property owned by only one spouse, typically property owned before marriage, inherited property, and gifted property
Settlor – see Grantor
Small estate – an estate that qualifies for small estate procedures under state law, usually an estate with modest assets or assets that will pass outside probate
Specific bequest – an asset left to a named beneficiary in a will or trust
Spousal share – see Elective share
Sprinkling trust – see Pot trust
Statutory share – see Elective share
Stepped-up basis – the increase of an inherited item’s tax basis to the value of the item at the date of the decedent’s death
Succession – inheritance under state law, not a will
Successor trustee – an individual who becomes trustee of a trust if the original trustee can no longer serve
Surety bond – see Bond
Survivorship – see Right of survivorship
T
Taking against the will – a surviving spouse’s decision to take a certain share of their deceased spouse’s property instead of accepting the share left under the will
Tangible property – assets with a physical presence, such as a house or a car
Tax basis – a value used to calculate an individual’s taxable profit or loss from the sale of an asset, usually the item’s purchase price
Taxable estate – a decedent’s property subject to estate tax, generally the gross estate plus the value of lifetime taxable gifts minus deductions
Tenancy by the entirety – a type of property co-ownership with right of survivorship in which a surviving spouse automatically inherits the property upon the deceased spouse’s death, sometimes also available to couples in domestic partnerships and civil unions
Tenancy in common – a type of property co-ownership that does not provide a right of survivorship
Testamentary – having to do with a will
Testamentary capacity – the legal ability to make a will
Testamentary trust – a trust created by a settlor’s will
Testate – to die with a valid will
Testator – the author of a will
Testatrix – a somewhat outdated term for a female testator
Totten trust – a bank account held in a trust for a beneficiary who will inherit the funds upon the account owner’s death, see Payable-on-death (POD)
Transfer agent – an individual or entity that executes the necessary paperwork to transfer stocks or bonds to a new owner
Transfer-on-death (TOD) – a designation that names a beneficiary to inherit the relevant property without probate
Trust – a legal device used to manage property and established by an individual for the benefit of another
Trustee – an individual with legal authority over the contents of a trust
Trustor – see Grantor
W
Will – a legal device used to dispose of property after death
