Probate Glossary

Abatement

A proportional reduction of the monetary legacies specified in a will, when there are not sufficient funds to pay them in full.

Ademption

When property mentioned in a will cannot be given to a beneficiary because it no longer belonged to the deceased at the time of death. For example, the particular gift may have been destroyed, sold, or given away between the time of the will and the time of death.

Administrator

A person appointed by a court to manage or take charge of the assets and liabilities of a deceased person in connection with the administration of a decedent’s estate. Also called a personal representative. (Note: old usage included the form “Administratrix” to denote a female Administrator.) If the person performing these probate services is named by the decedent’s will, then he or she is designated as the Executor.

Administrator with Will Annexed

An administrator appointed by a court, after executors named in the will have refused or are unable to act.

Affidavit

A written statement or affirmation made under penalty of perjury that requires notarization or other witness certification.

Ancillary Administration

An administration of a decedent’s property located in a state other than the state of the decedent’s domicile.

Beneficiary

The individual or entity that receives the benefit of a transaction (e.g., beneficiary of a life insurance policy, beneficiary of a trust, or beneficiary under a will).

Codicil

A supplement or an addition to a will. The codicil may modify, add to, subtract from, qualify, alter, or revoke provisions in the will. The codicil is a separate document, and is signed with the same formalities as a will. The codicil can be changed, revoked, cancelled, or destroyed at any time.

Community Property

Real or personal property that is owned in common by both spouses as a kind of marital partnership. Either spouse has management and control of the community real and personal property; however, both spouses must consent to:

  • Transfer of ownership of community real property
  • Transfer of a real property lease that exceeds one year
  • Gift of community personal property

Community property includes all property acquired from earnings during the marriage, as well as the earnings themselves. Property acquired by gift or inheritance is separate property, not community property.

Conservator

The person who legally has charge of the care and management of the person and/or property of an adult who is unable to provide for his or her own personal needs or who is substantially unable to manage his or her financial affairs.

Limited conservatorships may be established for developmentally disabled adults.

Contingent Beneficiary

One to whom distribution is dependent upon the occurrence of an event.

Decedent

A deceased person.

Declaration

A written statement made under penalty of perjury.

Devisees and Legatees

Persons named by a decedent in his or her will. A bequest or devise generally refers to real property, and a legacy refers to money or personal property.

Disclaimer

A refusal to accept, for example, a testamentary gift that is made in a prescribed manner and time.

Domicile

The specific location of a person’s permanent residence that determines, for many purposes, the laws that will govern his or her affairs. A person may have many residences, but he or she can have only one domicile. The domiciliary proceeding is created in the jurisdiction of the decedent’s domicile.

Donee

A person who receives a gift from another.

Donor

A person who makes a gift to another.

Escheat

The reversion of property to the state in the event a person dies leaving no valid will and no heirs at law surviving him or her.

Estate Taxes – Federal

The death taxes imposed by the federal government on the transfer of assets upon death.

Executor

The person appointed in a will by a testator to take care of the testator’s property after his or her death.  Also called a personal representative. (Note: old usage included the form “Executrix” to denote a female Executor.)

Ex Parte

A judicial proceeding, order, or injunction taken or granted at the instance and for the benefit of one party only, and without notice to, or contestation by, any person adversely interested.

Fiduciary

A person charged with a high degree of care, trust, and confidence, who acts on behalf of another. Executors and trustees are fiduciaries.

Gift Tax Annual Exclusion

Idaho does not tax gifts. Federal law allows a donor to exclude an amount of gifts from taxation each year, subject to a lifetime limitation. Donors and recipients should consult their tax expert for guidance.

Grantor

The person who makes a grant (transfer) of property to another person (e.g., grantor of a trust or grantor of a deed of property).

Grantee

The person to whom a grant is made.

Guardian

The person who legally has charge of the care and management of the person and/or property of a child during the child’s minority.

Heir

The person who inherits property under state law.

Inheritance Taxes

The taxes imposed by some states, according to the relationship to the decedent, on the person who receives the property. Idaho does not have an inheritance tax.

Intestate

Refers to someone who dies leaving no will.

Inter Vivos Trust

A trust created “between the living”; also called a living trust. The grantor (trustor) is a living person. An inter vivos trust can be either revocable or irrevocable.

Irrevocable Trust

A trust whose terms and provisions cannot be changed, modified, altered, amended, or revoked.

Joint Tenancy

A form of property ownership by two or more persons, often designated as “joint tenants with right of survivorship.” Joint tenants always own equal parts of joint tenancy property. When a joint tenant dies, his or her interest in the property automatically goes to the surviving joint tenant.

Life Estate

An interest in property that terminates upon the death of the beneficiary or life tenant.

Minor

A person who is under the age of legal competence.

Personal Representative

An executor or administrator.

Power of Appointment

The actual power of legal authority given by the trust or will of one person, the “donor” of the power, to a second person, the “donee” of the power, which enables the second person to designate the manner of disposing of the property. A power of appointment may be general or special, as defined below:

General Power

Enables the donee to designate himself, his creditors, his estate, the creditors of his estate, or any other person as owner of the subject property.

Special Power

Limits the donee as to the persons he or she can designate as owners of the property over which he or she has a power of appointment. The limitation of appointment can be very specific (for instance, to a group consisting only of the donor’s children) but can never be the donee, his estate, his creditors, or the creditors of his estate because this would defeat the purpose of the special power, namely, to keep the appointive property from being taxed in the estate of the donee on his or her death.

Pour-Over Will

A will that provides for the transfer, after or during the probate court proceedings, of all or part of the net assets of a decedent’s probate estate from the executor’s control to the control of a trustee who is in charge of a trust that was in existence immediately before the death of the deceased person (inter vivos trust).

Probate Administration

The legal process whereby a probate court supervises the marshalling of a deceased person’s debts and taxes and orders the property distributed according to decedent’s will, or in its absence, to the deceased person’s heirs. The probate court has jurisdiction over the personal representative and the decedent’s assets.

Real Property

Land and generally whatever is built, growing on, or attached to the land.

Remainder Interest

An ownership interest in property that will become a present interest after the present owner or life tenant has received all the property benefits to which he or she is entitled.

Residue

The remaining part of a decedent’s estate after the payments of debts and legacies. Also called “residuary estate.”

Residuary Beneficiary

One to whom all or part of the residue is distributed.

Reversionary Interest

An ownership interest in property that returns to the original owner when the intervening interest expires, such as at the expiration of a life estate or life tenancy.

Revocable Trust

A trust whose terms and provisions can be changed, modified, altered, amended, or revoked.

Right of Representation

A method of distribution, sometimes referred to as “per stirpes,” whereby the share of distribution of a deceased beneficiary is divided equally among his or her children.

Settlor

Another word for grantor or trustor of a trust. The person who “settles” the assets into the trust.

Tenancy in Common

A form of holding title to real or personal property by two or more persons. Because there is no right of survivorship, the legal relationships and results are very different from joint tenancy. Tenants in common need not hold equal interest, and on the death of a tenant in common, his or her interest will pass by his or her will or according to the laws of intestate succession.

Testamentary Trust

The trust that comes into being only as a result of the death of a person whose will provides for the creation of the trust after his or her death; hence, the term “testamentary.” Once in existence, this trust is irrevocable.

Testate

Refers to someone who dies leaving a will.

Testator

The person who signs the will that disposes of his or her property. (Note: old usage included the form “Testatrix” to denote a female Testator.)

Totten Trust

A form of revocable trust, usually a bank account, that allows distribution to the beneficiary upon the death of the trustee, without the need for probate of the asset. Example: John Jones as Trustee for Mary Jones.

Trust

A legal entity established either during a trustor’s lifetime (inter vivos) or at his or her death (testamentary). The trust is governed by the terms set forth in the trust documents. A trust must have a trustee, a beneficiary, and a “corpus” or property subjected to the trust.

Trustee

The person who, in a trust, has the power given in the trust to carry out the wishes of the person or persons (trustor or trustors) who created the trust. The trustee has a fiduciary obligation to the trust’s beneficiaries enforceable in court if not carried out. The trustee is subject to strict regulation. Although he or she has legal title for convenience, the beneficial or equitable title is in fact owned by the beneficiaries. When there is more than one trustee, the trustees are called co-trustees.

Trustor

The person or persons who establish a trust.  There can be more than one trustor.

Uniform Gifts to Minors Act

A law that permits a person (“donor”) to register stock, bank accounts, or insurance in the name of another (“custodian”) for the benefit of one who is at the time a minor (“beneficiary”) without preparing a formal trust document.  In effect, the trust document has been written into the law. In so doing, the donor makes an irrevocable gift of the property to the minor, but the custodian holds, invests, reinvests, and applies the property for the benefit of the minor until his or her majority, at which time the property is turned over to the beneficiary. This is a simple, inexpensive way to make small gifts to a minor.

Will

A document that is prepared and executed by a person with the formality required by the laws of the state of his or her domicile at the time, which is intended to govern and direct the disposition of his or her estate and settlement of his or her legal affairs at the time of his or her death, and which has no legal effect until such death. If the document is entirely in the person’s own handwriting, it is called a “holographic will.” If a will is typed, it is called a “witnessed will” because the signing of it generally requires two or more witnesses to testify later, if necessary, that the execution was not procured by fraud, duress, or misrepresentation.