Geoff R. Casavant, P.C. -- Glossary of Probate Terms

On this page are listed some of the most common estate planning and probate terms, along with their definitions. Most of the definitions contain links to other related terms. Click on a letter in the alphabet chart below to jump to terms beginning with that letter. At any time, you may click on the red dot () at the end of any definition and be returned to the alphabet chart.

If you do not see the term you are looking for in this list, feel free to request a definition on the "Ask a Probate Question" page.

A | B | C | D | E | F | G | H | I | J | K | L | M
N | O | P | Q | R | S | T | U | V | W | X | Y | Z

-A-

Administration: The legal process of settling the estate of a decedent, including identifying and collecting all assets, paying debts and taxes, and distributing any remaining property to those entitled to receive it. Administration may be either dependent or independent.

Administrator: A personal representative appointed by a court, that is not named as an executor in the will of a decedent, either because the decedent had no will, the decedent did not name an executor in the will, or all the executors named in the will are unable or unwilling to serve. The term technically applies only to males, but in recent times it has come to be used in reference to either a male or female.

Administratrix: A female administrator.

Ancillary Probate: A probate proceeding that is performed in a state other than in the decedent's domicile. Ancillary probate is most frequently seen (and required) when the decedent owned real property in more than one state.

-B-

Beneficiary: Refers to a person who inherits a share of the estate of a decedent because he or she is named in the decedent's will, either specifically or as part of a class. Also refers to the person entitled to the income of a trust, or the person entitled to the proceeds of an insurance policy.

Bequest: An archaic term that specifically refers to a gift of personal property in a will. A bequest is therefore technically different from a devise. However, in recent times the two terms have begun to be used interchangeably or together, as in, "I give, devise and bequeath."

-C-

Codicil: An amendment to a will. A codicil must be executed with all the formalities of a will, and is generally used for no more than a few changes. A codicil may be holographic. Codicils must be read in conjunction with the will they amend; therefore, for numerous or major changes, an entirely new will is generally better.

Commingling: The act of mixing one spouse's separate property with either the other spouse's separate property or the community property of both spouses. If the commingling is sufficient, it can cause the separate property to lose its separate character and convert to community property.

Community Property: Refers to property acquired by either spouse during marriage, except property which is shown to be separate property. Community property by law belongs to both spouses in equal shares, regardless of its source. In addition, unlike some community property states, Texas holds that the income from separate property is itself community property.

-D-

Death Tax: Another name for the estate tax or the Texas inheritance tax.

Decedent: A deceased person.

Dependent Administration: A probate proceeding in which the personal representative must seek and receive approval from the probate court before performing all but the most simple tasks with respect to the estate. This has the effect of significantly increasing both the time and cost of the administration; therefore, independent administration should be sought if at all possible.

Devise: An archaic term that specifically refers to a gift of real property in a will. A devise is therefore technically different from a bequest. However, in recent times the two terms have begun to be used interchangeably or together, as in, "I give, devise and bequeath."

-E-

Estate: The term has two meanings depending on the context. In the context of administration, "estate" means the probate estate. In the context of estate taxation, "estate" refers to the gross estate or taxable estate. It is important to keep in mind that the gross estate includes, not only the probate estate, but other assets such as life insurance proceeds and property passing by non-testamentary transfer.

Estate Tax: A tax imposed on the right to transfer property at death. The term estate tax generally refers to a tax imposed by the Federal government; the tax imposed by the State of Texas is known as the inheritance tax. As of 2003, only a person with a gross estate valued at over $1 million needs to be concerned about either the estate or the Texas inheritance tax, although other states may impose their own inheritance taxes in appropriate cases.

Executor: A personal representative appointed in a will or codicil. The term technically applies only to males, but in recent times it has come to be used in reference to either a male or female.

Executrix: A female executor.

-F-

-G-

Gross Estate: For tax purposes, the term refers not only to the probate estate, but also to property passing by a non-testamentary transfer or by the terms of a trust, as well as the proceeds of most insurance policies on the life of the decedent.

-H-

Heir: Refers to a person who inherits a share of the estate of a person who dies intestate. An heir is different from a beneficiary, who inherits due to an express direction in a will.

Holographic: When referring to a will, it means a document written entirely in the handwriting of the testator. A holographic will differs from a statutory will in that a holographic will does not need to be witnessed in order to be valid.

-I-

Independent Administration: A probate proceeding in which the personal representative is free from everyday supervision by the probate court, thus saving significant time and expense in the administration. Independent administration may be directed in the will of a testator, or may be granted by the probate court upon the agreement of all heirs or beneficiaries.

Inheritance Tax: A tax imposed by a state on the right to inherit property from a decedent. In Texas, the inheritance tax is equal to the maximum amount allowed as a state tax credit against the Federal estate tax, and no inheritance tax is due unless an estate tax is also due. However, with the repeal of the state tax credit after 2004, the calculation of the Texas inheritance tax may be expected to change.

Inter vivos trust: A trust created and funded during the lifetime of the trustor. An inter vivos trust is different in this respect than a testamentary trust. Usually the trustor of an inter vivos trust is also a beneficiary of the trust, and may also serve as a trustee.

Intestate: Refers to a person who died without a valid will. In an intestate case, the rules of descent and distribution determine the distribution of the decedent's estate; the order of persons qualified to serve as administrator is also set by law.

Issue: Refers to the natural and adopted children, grandchildren, and other lineal descendants of a particular person.

-J-

Joint Tenancy: A means whereby two or more people can hold property together. In Texas, joint tenancy by itself is the equivalent of a tenancy in common. However, if property is held in joint tenancy with right of survivorship, when one of the joint tenants dies, that tenant's share passes to the remaining tenants in a non-testamentary transfer; full title to the property passes to the last surviving joint tenant. In some states, the right of survivorship is presumed if property is held in a joint tenancy rather than in a tenancy in common.

-K-

-L-

-M-

Marital Deduction: In the context of the estate tax, it refers to the policy of the Federal government that property passing to a spouse under a will or the rules of descent and distribution does so without being subject to estate tax. There is no limit to the marital deduction if the surviving spouse is a United States citizen. Property passing to a surviving spouse is one of the items deducted from the gross estate to arrive at the taxable estate. Non-citizen spouses are entitled only to a marital deduction of $100,000, unless a qualified domestic trust is used.

Marital Trust: A trust designed to reduce estate taxes upon the death of the trustor. The marital trust qualifies for the marital deduction. The surviving spouse is entitled to all income of the trust for life, and the trustor may specify how the remaining trust corpus is to be distributed upon the death of the surviving spouse.

-N-

Non-Testamentary Transfer: A transfer of property that occurs upon the death of a decedent, but is not controlled by the decedent's will or by the rules of descent and distribution. The most common non-testamentary transfers arise from property held in joint tenancy with right of survivorship, or from payable on death or similar accounts.

-O-

-P-

Per Stirpes: A legal term describing a way of dividing property among a decedent's issue, such that the children of a person who would have been an heir, but died before the decedent, split the share their parent would have received. Per stirpes distribution is generally considered to be the fairest way of dividing the estate.

Personal Representative: The person appointed by a court to administer the estate. A personal representative nominated in a will is referred to as an executor, or occasionally an executrix if female; a personal representative that is not nominated in a will is an administrator or administratrix. Whatever the name, the personal representative's powers and duties are identical -- the personal representative must inventory and manage the decedent's estate, identify and collect any claims owed to the decedent; identify and pay any debts (including taxes) owed by the decedent, and distribute the remaining property the the decedent's heirs or beneficiaries.

Probate: Strictly speaking, probate refers to the court proceedings necessary to prove the validity of the decedent's will. However, the term has generally come to refer to all aspects of estate administration.

Probate Estate: All property which passes subject to the will of a decedent or according to the rules of descent and distribution. The term "probate estate" therefore does not ordinarily include property passing by a non-testamentary transfer or by the terms of a trust, nor does is usually include the proceeds of a life insurance policy.

-Q-

QDOT: A qualified domestic trust.

QPRT: A qualified personal residence trust.

Qualified Domestic Trust (QDOT): An estate planning vehicle used in order to secure the marital deduction for a spouse who is not a United States citizen. The use of a QDOT ensures that the spouse may not remove the trust property from the country, and thus the property will be subject to the estate tax upon the subsequent death of the surviving spouse.

Qualified Personal Residence Trust (QPRT): An estate planning technique used to reduce estate taxes by transferring a residence into a trust, while retaining the right to live there rent free for life or a period of years, following which the residence is transferred to named beneficiaries. If the trustor survives the required number of years, the residence is removed from her estate.

-R-

Right of Survivorship: A quality of property that is owned by two or more people, such that upon the death of one of the co-owners, his or her share passes to the remaining co-owners without the necessity of probate.

Rules of Descent and Distribution: A statutory scheme to determine the distribution of the estate of a decedent who dies intestate. There are different rules for separate property and community property. The most common means of distribution is among the spouse and children or other issue of the decedent in a per stirpes distribution, although if the decedent had no spouse or issue, there is provision for inheritance by the decedent's parents, siblings, and other relatives.

-S-

Self-Proved: Refers to a will that has a self-proving affidavit attached. A self-proved will is easier to probate than a will that is not self-proved, as all the facts necessary to prove the validity of the will are presumed to exist. Therefore, it is not necessary to secure testimony from the witnesses to the will.

Self-Proving Affidavit: A document, separate from a will but attached to it, sworn to and signed by the testator and the witnesses to the will before a notary public. The affidavit is usually executed at the same time as the will, but it may legally be executed at any time afterwards. The affidavit sets forth all the facts necessary to prove the validity of the will and makes the will self-proved.

Separate Property: Property acquired by either spouse before marriage, or acquired by a spouse during marriage by either gift or inheritance. Certain awards for personal injury, such as for medical expenses, are also considered the separate property of the spouse who was injured. Separate property may lose its separate character if it is sufficiently commingled, and may be recharacterized as community property.

Settlor: Another name for the trustor of a trust.

Statutory Will: A will that is not holographic. In order to be valid, a statutory will must be signed by the testator and at least two witnesses.

-T-

Taxable Estate: Refers to the property of a decedent that is subject to the estate tax. Generally the taxable estate is equal to the gross estate, less deductions such as any debts of the decedent, expenses of administration, and property subject to the unlimited marital deduction.

Tenancy in Common: A means whereby two or more people can hold title to property together. Each tenant in common owns an undivided share in the entire property, and can sell such undivided share, or dispose of it by gift or by will. Tenancy in common is sometimes referred to as joint tenancy, but it must not be confused with joint tenancy with right of survivorship.

Testamentary Trust: A trust that is created in the trustor's will, and thus does not come into existence until the death of the trustor and the admission of the trustor's will to probate.

Testator: The author of a will. The term technically applies only to males, but in recent times it has come to be used in reference to either a male or female.

Testatrix: A female testator.

Trust: A legal arrangement whereby legal ownership of property is vested in one or more persons (the trustee or trustees) and the right to the enjoyment of the property (such as the income) is vested in different persons (the beneficiaries). Therefore, the beneficiaries have the benefit of the trust corpus, but are not ordinarily able to dispose of it by sale or otherwise.

Trustee: The person with legal ownership of property comprising the corpus of a trust. A trustee owes various fiduciary duties to the beneficiaries of the trust, including the duty to make the trust productive, to deal fairly with the trust assets, and to not personally profit from his trust duties at the expense of the beneficiaries.

Trustor: The creator of a trust, also known as the settlor.

-U-

-V-

-W-

Will: The basic document, whereby the testator directs the disposition of some or all of his property in the event of his death. A will may also be used to appoint one or more persons to serve as executors of the estate, or to direct how property may not be disposed. A will may be either statutory or holographic.

-X-

-Y-

-Z-

Not Certified by the Texas Board of Legal Specialization

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