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Estate Planning Glossary

Well known for expertise in estate planning, probate, and elder law issues, the law firm of Tyrell Law, PLLC provide a glossary of terms to help our clients and web site visitors understand the language of used in the course of preparing and administering wills, trusts, estates and probate matters.

Assets: Any property of value that can be used or made available for the payment of debts.

Beneficiary: A person designated to receive the income or proceeds from an insurance policy, annuity, or retirement plan; to take assets under a will; or to receive benefits from a trust.

Claims: A decedent’s creditors may file claims against the decedent’s estate to collect on any remaining debts of the decedent. Typically, creditors collect on debts out of an estate before any remaining assets are distributed to the intended heirs or beneficiaries.

Codicil: A written amendment to an existing will. Depending on the applicable state laws, certain formalities may be required for a codicil to be valid. Typically, the terms of an existing will that are not changed by the codicil will remain in effect.

Decedent: The person who has died.

Devise: When used as a noun, real or personal property given to another by will. When used as a verb, to dispose of real or personal property by will.

Devisee: Any person designated in a will to receive real or personal property.

Durable Power of Attorney for Health Care: A written document outlining one’s specific desires with respect to critical care and which appoints an individual to carry out the directives contained within the document.

Durable Power of Attorney for Asset Management: A written document outlining one’s specific desires with respect to the management of his finances. The document also appoints an individual to carry out the directives contained within the document.

Elder Law/Medicaid Planning: An arrangement of one’s assets so as to qualify that person for Medicaid assistance in the event long-term nursing home care is necessary. Medicaid planning also seeks to preserve the financial assets of the spouse who remains at home.

Escheats: When a decedent’s property goes to the state because of lack of heirs.

Estate: All the assets left by the decedent. The probate estate includes all of the estate assets that fall within the jurisdiction of a given probate court.

Estate Planning: A process through which a person plans for transferring his or her assets at death. Agreements and documents reciting arrangements whereby assets are transferred in trust to be held, administered and distributed by the trustee for the sole benefit of the named trust beneficiaries. This package often includes, but is not necessarily limited to, Durable Power of Attorney, Durable Power of Attorney for Healthcare, and Directive to Physicians.

Executor (Also called “personal representative”): A person appointed in a will to collect the estate assets, pay the decedent’s outstanding debts and taxes, and ultimately distributes the assets of the estate to the beneficiaries. If there is no will, or the will does not name an executor, a probate court may appoint an administrator to perform this function.

Family Limited Partnerships: A type of business entity, which allows you to reduce the size of your taxable estate while retaining full control of the partnership; to compound your available gift and estate tax credits and exemptions; to spread income among children who are in lower tax brackets; and to place assets beyond the reach of creditors.

Gift deed (Also called deed of gift or gift conveyance): A mechanism used to give property during the giver’s life to another person for little or no compensation.

Heir: A person entitled to inherit all or a portion of the estate of a person who has died without a will. Technically, beneficiaries are different from heirs. Heirs are people who could, or do, inherit assets from a decedent under the laws of intestacy. Beneficiaries take assets pursuant to a will.

Intestate: A person who dies without a will is said to be intestate. In intestacy, a court with jurisdiction over property in the estate distributes a deceased person’s assets by applying a single, one-size-fits-all formula. The distribution of assets is carried out according to the jurisdiction’s law of intestacy or probate code.

Joint tenancy with right of survivorship: A special form of co-ownership of property. In a joint tenancy with right of survivorship, co-owners share undivided, fractional interests in the whole property. As each co-tenant dies, his or her interest passes automatically to the surviving co-tenants. The last surviving joint tenant will own the entire interest in the land individually, and at that joint tenant’s death, the property will be distributed pursuant to his or her estate plan. A co-owner’s interest in a joint tenancy with right of survivorship is non-probate property.

Jurisdiction: The power or authority of a court to hear and decide a particular matter. Jurisdiction can be limited by geographic area or by the type of case being heard. For example, there may be a special probate court that has jurisdiction over specific probate matters only.

Last Will & Testament: A written instrument, which reflects the manner in which one’s assets are to be distributed upon his death.

Limited Liability Company: A business entity that allows you to take advantage of the liability protections of a corporation, while enjoying some of the simplicities of a partnership.

Litigation: The initiation and/or defense of civil actions initiated to protect one’s rights and interests.

Non-probate property: Probate affects some, but not necessarily all, of a person’s assets. Non-probate property includes things like annuities, life insurance policies, and payable-on-death (POD) bank accounts that are paid directly to a beneficiary other than the deceased person’s estate. Non-probate property is said to transfer automatically at death, and therefore is not part of the decedent’s estate that needs to be administered.

Power of attorney: A legal document that authorizes a person to act on another’s behalf for specific purposes and under specific conditions.

Probate: The entire process of administering and distributing a deceased person’s estate, whether by will or intestacy. Probate is typically supervised by a court and may include a determination of the validity of a will. Probate includes finding and collecting all of the decedent’s assets, paying all of the decedent’s outstanding debts and other obligations, and distributing the remaining estate assets to the decedent’s heirs or beneficiaries.

Probate code: The body of law that governs the process of settling a decedent’s estate, whether or not a will was prepared.

Real property: Includes land and anything permanently erected on or attached to the land, such as a house or other building. Real property means the same thing as real estate.

Remainderman: Refers to one who is entitled to the remainder of a life estate after a particular reserved right or interest has expired.

Special Needs Trusts: A written instrument to preserve the assets which may be received by someone of limited capacity, while also preserving any governmental income or benefits which that individual may be receiving.

Tenants in common: In a tenancy in common, co-owners share undivided, fractional interests in property. Each co-owner has an individual, partial interest in the whole property. Their interests are undivided, which means no owner has a specific area or section of the property; instead, all co-owners must collectively share in ownership of the whole. Individual interests property held as joint tenants-in-common are subject to probate and do not pass automatically to anyone without additional legal steps.

Testamentary: Pertaining to a will.

Testamentary Trust: A testamentary trust is one that is set up in a will, but does not become effective until the testator’s death.

Testate: Dying with a will. A person who makes or has made a will is a testator.

Testator: A person who makes a will.

Trust: Generally, a trust is a legal mechanism in which one person or entity (the trustee) holds property for the benefit of another person (the beneficiary) pursuant to the terms of a written trust agreement.

Trustee: The person, or corporate body holding title to the trust property, appointed to execute, administer, and carry out the terms of a trust for the benefit of the beneficiary.

Trustor: One who makes a trust.

Trust Administration: Assisting in the administration and distribution of assets pursuant to a valid trust agreement following the death of the original trustor.

Will: A legally executed document that explains how a person wants his or her property distributed after death. This type of distribution in a will is called a devise. Rules for determining the validity of a will vary by jurisdiction.

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