Say What? Probate Terminology Defined
Attorneys use a lot of words when talking about probate. However, in my conversations with friends and clients, I discovered that many people outside the legal community don’t understand what we’re talking about.
Below are definitions of some common probate terms:
- Probate: Probate is the legal process of proving the validity of a will. Probate is also commonly understood to refer to the legal process in which the estate of a decedent is administered.
- Decedent: Someone who is no longer alive.
- Probate Court: The court with jurisdiction over the probate of wills and the administration of estates.
- Will: A legal document that contains instructions outlining who should receive a person’s property after they die. Typically, Wills also names guardians for minor children and appoint an executor to administer the estate in accordance with the decedent’s last wishes.
- Testator (Testatrix): A man (woman) who makes a will.
- Beneficiary: A person or entity eligible to some benefit under a will.
- Heir: A person who is statutorily entitled to inherit property from the decedent who does not leave a valid Will
- Intestate: A person who does without a will.
- Intestate succession: The statutory scheme addressing who inherits the property of someone who dies intestate.
- Administrator (Administratrix): A personal representative appointed by the Court to oversee the administration of an estate.
- Exectutor (Executrix): A personal representative appointed by the testator to administer the estate in accordance with his last wishes.
- Independent Administration: A probate proceeding in which a personal representative of an estate is able to administer an estate with very little court supervision.
- Dependent Administration: A probate proceeding in which the personal representative of the estate must seek and receive approval from the probate court for tasks related to the administration of an estate.
- Letters Testamentary: A legal document issued by a probate court that authorizes the executor named in a decedent’s will to manage and administer the decedent’s estate.
- Letters of Administration: A legal document issued by the court authorizing an administrator to manage and distribute the assets of an estate when there is no valid will.
- Probate assets: Assets such as real estate, vehicles, and bank accounts that a decedent owns at death for which there is no designated beneficiary or joint owner with right of survivorship.
- Non-probate assets: Assets that pass to a designated beneficiary without going through the probate process. This includes life insurance policies, pension plans, 401(k) plans, IRA’s, joint bank accounts, payable-on-death accounts, and property owned as joint tenants with right of survivorship
- Estate: All the property the decedent owned at the time of their death.
- Estate tax: The estate tax is a tax imposed on the transfer of a “taxable estate” to a decedent’s heirs and beneficiaries.
- Guardian: A person granted full legal and personal custody of a minor child.
- Guardian ad litem: A person appointed by the court to represent and protect the interests of someone who is underage or incompetent.
- Self-proving affidavit: An affidavit that affirms a testator properly signed a Will in the presence of two witnesses who observed the testator signing his will and heard him or her say that it was his or her last will and testament. A self-proving affidavit eliminates the need for witnesses to appear in a probate proceeding to affirm the validity of the will.