Common Terminology in Wills and Estate Planning

Lawyers use a lot of terminology when talking about Wills and estate planning, assuming that everyone knows what they mean. It can feel awkward to ask for clarification, even when the terms matter. The short definitions that follow are meant to take the pressure off by putting these common words into plain, everyday English.

Below are common words you will see or hear when you are planning a Will or talking about what happens to property after death. They are grouped by topic and explained in plain English.

Core Wills and Estate Planning Terminology

You’ll hear the following terms in virtually every conversation about Wills.

Dying testate means dying with a legally valid Will in place. This allows your property to pass to the people you choose instead of the default state rules.

When someone dies intestate, it means they die without a valid Will. When that happens, state law determines who inherits.

Intestacy statutes are the state laws that explain how to distribute the assets of a person who dies intestate. They are one-size-fits-all. They do not consider your specific wishes, relationships, or promises. Intestacy statutes are simply the legislature’s best guess about what the average person might have done if they had signed a Will.

A Will is the legal document that says who will receive your property after you die. Most Wills also name a guardian for minor children and appoint an executor to handle the estate.

Codicils are formal amendments to an existing Will. They must be signed with the same formalities as a Will.

Revocation is the act of cancelling an existing Will. This can be done by signing a new Will that clearly states it revokes all earlier Wills and codicils or by destroying it.

The People Involved

These terms describe the people who make the plan and the people who carry it out.

A testator is the person who makes and signs a Will. “Testatrix” if the feminine version of testator.

Someone who has died is called a decedent.

An executor is the person named in a Will to carry out the testator’s instructions. The executor is the person tasked with gathering property, pays valid debts and taxes, and then distributing what remains to the beneficiaries. A female executor may be called an executrix.

An administrator is appointed by the court to handle an estate when there is no legally valid Will.

Personal Representative is the general term that includes both executors and administrators. You may see it on court forms or in statutes.

An heir is someone who us entitled to inherit when someone dies without a Will. Heirs are determined by state intestacy law based on family relationships, not on what someone believes you would have wanted.

A beneficiary is a person or organization named to receive property under a Will, trust, life insurance policy, retirement account, or other beneficiary designation.

Terminology Related to Types of Wills and Key Clauses

Not every Will looks the same. These terms describe the form a Will takes and some of the standard language that supports it.

An attested Will is a typewritten or printed Will that is not completely in the testator’s handwriting. This is the most common type of Will.

A holographic Will Will is a Will that is written entirely in the testator’s own handwriting and signed by the testator. In Texas and North Carolina, it does not require witnesses.

A self-proving affidavit is a signed, notarized statement attached to a Will in which the testator and witnesses swear that the Will was properly signed. It allows the court to accept the Will without calling the witnesses to testify later about how it was executed.

The attestation clause is the paragraph near the end of the Will where the witnesses state that the testator appeared to be of sound mind, understood the document, and signed it voluntarily in their presence.

Pour-over Wills are simple Wills used with a revocable living trust. It usually states that any property not in the trust at death should “pour over” into the trust so that everything is ultimately handled under one coordinated plan.

Property and Gifts

These words describe what you own and how your Will talks about it.

Real property is land and anything attached to it, such as a house or other buildings.

Personal property is everything you own that is not real property. It includes bank accounts, cars, jewelry, furniture, clothing, artwork, and other movable items.

Separate property (Texas) includes property you owned before marriage. It also includes gifts or inheritances you receive, even during marriage. Separate property generally belongs to you alone.

Community property (Texas) is most property you and your spouse accumulate during marriage that is not separate property.

A bequest is a gift of property in a Will. When you leave a specific item or a sum of money in your Will, you are making a bequest.

Traditionally, a devise is a gift of real estate in a Will, such as land or a house. Some modern documents use “devise” for real estate and “bequest” or “gift” for other property.

A specific bequest or devise is a gift of a particular item or asset. For example, giving “my diamond ring to my daughter” or “my home at 123 Oak Street to my son” would be a specific bequest and devise.

The residuary estate is everything left in your probate estate after debts, taxes, expenses, and specific or general gifts have been paid.

A residuary beneficiary is the person or people who receive the residuary estate. Many Wills leave the residue to children, a spouse, or a mix of family members and charities.

Trust-Related Terms

Trusts are another way to manage and pass property. These terms explain how they fit with your Will.

A trust is a legal arrangement in which one person, called the trustee, holds and manages property for someone else, called the beneficiary, according to written instructions.

A testamentary trust is a trust created in a Will. It does not exist until after the testator dies and the Will is admitted to probate. It is often used to hold property for children or other beneficiaries who should not receive everything outright at once.

Revocable living trust: A revocable living trust is a trust you create during your lifetime that you can usually change or revoke. If you transfer assets into the trust while you are alive, those assets are typically not part of your probate estate and may avoid probate.

Family Relationship Terms

These small words can dramatically change who receives property under your plan.

Issue or descendants: Issue, or descendants, are your direct bloodline going forward, such as your children, grandchildren, and great-grandchildren. Stepchildren are not usually included unless they are specifically named.

Lineal descendant: A lineal descendant is someone directly descended from you. This would include a child, grandchild, or great-grandchild.

Per stirpes is a Latin phrase meaning “by the branch.” If a gift goes to your descendants per stirpes and one child dies before you, that child’s share passes down to his or her children.

Per capita means “by the head.” A per capita distribution usually divides a gift equally among all living members of a group.

Probate and Non-Probate Concepts

These terms describe the court process and how different kinds of assets move after someone dies.

An estate is everything you own at the time of your death, including real property, personal property, and financial accounts.

Probate is the legal process of proving that a Will is valid and overseeing the administration of a decedent’s estate. It includes appointing an executor or administrator, gathering assets, paying valid debts and expenses, and distributing what remains to the proper beneficiaries.

Probate court is the court that oversees estates. In Texas, probate is typically handled in county probate courts or county courts at law. In North Carolina, the clerk of superior court oversees probate matters.

Probate assets are items titled only in the decedent’s name with no beneficiary or survivorship feature.

Non-probate are assets that do not pass through probate. Common examples of non-probate assets include life insurance policies with named beneficiaries, pension plans, 401(k)s and IRAs, payable-on-death or transfer-on-death accounts, and property owned as joint tenants with right of survivorship. These pass by contract or title rather than by the terms of your Will.

Common Definitions About Capacity and Validity

Finally, these concepts relate to whether a Will will stand up in court if it is challenged.

Testamentary capacity is the level of mental ability needed to sign a valid Will. Someone has testamentary capacity when they understand that they are making a Will, know in a broad way what they own, and know who their close family members are.

Undue influence is improper pressure that overcomes a person’s free will. If someone is pressured, controlled, or manipulated into signing a Will that reflects another person’s wishes instead of their own, a court may later find that the Will is invalid.

You do not need to memorize all of these definitions. The goal is simply for you to feel more at ease when you see these words in your own documents or hear them in conversation.

When the vocabulary feels less intimidating, it becomes easier to focus on what really matters: making sure your plan reflects your values, protects your property, and cares for the people you love.

This article was originally published on December 11, 2009 and updated on November 25, 2025.