The words and phrases used in legal documents can often be confusing to us. Look in our Legal Lexicon for definitions to the terms you will see when planning for your Estate or making your Will.
These terms are in alphabetical order. If you do not find the word or term you are looking for, please submit it to our legal department at email@example.com, and we will add it to the list.
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If you are looking for general information about practices and usage, rather than a definition, you may find the answer in our Frequently Asked Questions section.
To revoke or recall. In Estate Law, to satisfy a legacy under the Will by leaving a gift in substitution, or in satisfaction, of a gift left in a Will. Example: in your Will you left $5,000.00 for Boy Scouts but decided to give that gift to them while you were still alive. They would not then receive another $5,000.00 under the Will if it could be shown that this was the same gift intended by the Will.
If there is a Will this role is usually filled by the Executor. The term administrator only applies in situations where there is no Will, or the Will fails to name an executor, or the executor named does not act. An Administrator is then appointed by the Probate Court to manage or take charge of (ie. administer) the assets and debts of the deceased. Historically, Administrator referred to males and administratrix (or executrix) to females.
One who benefits from another’s acts. In Estate Law this can be under a Will or a trust.
A gift of personal property under a Will. May also be referred to as a legacy. A gift of real property under a Will is termed a “devise”.Bequests can be specific, conditional, or residuary. A specific bequest is where the testator gives the beneficiary a certain piece of personal property or a certain class of personal property. A conditional bequest takes effect upon the happening of an event or condition. A residuary bequest is the gift of all the remainder of the testator’s estate after payment of debts and other legacies.
An addition or supplement to a Will. It may add to, subtract from, qualify, modify or revoke certain provisions in an existing Will. It usually does not deal with all of the testator’s estate and usually is in conjunction with a prior Will. Additionally, a codicil could be used to revoke a prior Will.
The common law is the body of those principals and rules relating to persons and property as distinguished from laws created by statute. Historically, it arose from the laws relating to the common class of people during medieval feudal England. All the laws of England and the colonies prior to statehood are considered the “Common Law”.
Refers to the most usual form of probating a Will. It is distinguished from proof in solemn form. Common Form proof usually involves filing of the Will and an affidavit from one or more of the witnesses to the Will confirming that the testator was of sound mind when they signed the Will. If there is any concern about whether or not the Will is the valid Will, or the testator was of unsound mind, a trial may take place to prove the validity of the Will. This trial is considered proof in solemn form.
Contemplation of Marriage
The act or intent of future marriage. If a Will is made other than in contemplation of marriage and the testator subsequently marries, the Will is considered revoked by operation of law and a new Will should be executed by the testator. Wills made in contemplation of marriage however, which specifically name the future spouse, are not revoked upon marriage.
Contemplation of Death
The apprehension or expectation of an approaching or imminent death. For US estate tax purposes, a gift by a decedent within three years of their death is deemed to have been made in contemplation of death.
The care and control of a person or a thing. In reference to children it is the care, control and maintenance of the child. Custody may be awarded to one of the parents in a divorce or separation proceeding by a court.
The rejection or refusal of a gift under a Will.
It can also refer to a waiver of legal rights by signing a disclaimer (or waiver) document.
Commonly referred to as “cutting someone out” of a Will. It is the act of a testator depriving an heir of the right to inherit.
A single Will in which two persons leave their property to the other so that the survivor takes the whole. Usually not recommended by Estate Planning professionals.
Everything you own at death. It refers to the total property of whatever kind that is owned by the decedent prior to its distribution in accordance with the terms of the Will.
The area of law which takes into account the use of Wills, tax planning, insurance, property and trusts to ensure maximum benefit of the law while carrying out individual’s wishes for disposition of their property prior to or upon death. The goal is usually to minimize monies paid in taxes, fees and duties so that there is maximum distribution to the beneficiaries.
To be alienated from a loved one or relative. Usually refers to spouses or family members who have separated on bad or difficult terms and no longer associate or communicate.
In Estate Law refers to the act of signing and witnessing a will, thereby making it a legal document (can also refer to other documents such as (contracts). It can also refer to the attempts made to satisfy a money judgment through the legal process of enforcement (usually by seizing and selling property of the debtor).
A person named by a testator in their will to carry out their final wishes. The duties of the executor typically involve identifying all debts, assets and distribution or disposition of property according to the Will. Where a person does not leave a Will, or the Will fails to name an executor, or the executor named does not act, the probate court can appoint an administrator. The executor and administrator are generally considered the “personal representative” of the deceased. You can have one or more executors named in the Will to act together and they will be considered co or joint executors.
A person or institution that manages the property of another and must exercise a high standard of care imposed by law or contract. The term is derived from Latin and means “trustee”. It requires utmost good faith and honesty. An Executor or an Administrator under a Will are fiduciaries as are a receivers in bankruptcy, trustees under a trust, certain professional advisors, etc.
The act of bestowing or conferring upon another a gift, right, power or authority. Also, a transfer or conveyance of property by Deed or other instrument.
One to whom a grant is made.
A person who makes the grant or transfer. The creator of a trust can be referred to as the grantor of the trust.
A trust whereby the grantor retains control over the income and capital to such an extent that for income tax purposes they are deemed to have derived the income and is taxable in their hands and not in the hands of the beneficiary who receives it.
A person lawfully appointed to take care of another’s finances and person where that individual is incapable of handling their own affairs. Specifically, one who legally has the care and management of the person and/or the estate of a child during their minority (under the age of majority).
Heirs at Law
Those that inherit upon death. Where the heirs are named in the will they are referred to as “testamentary heirs” and if there is no Will and they take by intestacy usually referred to as “heirs by intestacy”.
A Will or Deed written entirely by the testator or grantor in their own hand and usually not witnessed.
State and provincial laws vary widely with respect to the validity of holograph Wills. Many jurisdictions refuse to recognize any Will not meeting the formal statutory requirements relating to execution, witnesses, etc. Some allow holographic Wills if all or certain portions are in the handwriting of the testator.
An act or action contrary to law.
The term is usually applied to children born out of lawful wedlock. Such a child however is legitimate if the parents marry after conception and before birth.
The resulting condition of a person, who is impaired by reason of mental or physical illness or disability, advanced age, chronic use of drugs or other cause to the extent that they lack capacity or intelligence to make or communicate responsible decisions affecting themselves.
Lack of capacity, ability or power to tend to your own affairs. Also referred to as “incompetency” when referring to a mental incapacity. Legal incapacity refers to a person who has a right but is legally prevented from exercising it, as in the case of a minor.
The monetary return from one’s activities. Includes gains, profits, salaries and wages.
Lack of ability, legal qualification or fitness to look after one’s affairs – usually relating to lack of mental or intellectual fitness.
A contract where one party (the insurer) undertakes to compensate another (the insured) for loss caused by a specified peril. In estate matters it usually refers to life insurance contract where the company agrees for a premium paid to pay a specified sum (ie. the face value of the policy) to a designated beneficiary upon the death of the insured.
Under a Will a designation that refers to a specific policy and directs the proceeds from that policy on death be paid to a beneficiary named under the designation in the Will. If no designation is made under the Will any proceeds of insurance will be paid out to the beneficiary named on the insurance policy.
Latin meaning “between the living”. A gift from one person to another is called a inter vivos gift as distinguished from a gift made in contemplation of death (mortis causa) or a testamentary gift.
Inter Vivos Trust
A trust created during the lifetime of the grantor (also referred to as a settler) and to become effective in their lifetime. A trust, which takes effect at the death of the settler/testator, would be called a testamentary trust.
A person who does not have testamentary capacity such as an infant or an incompetent.
Dying without having made a valid Will. Can also refer to dying without having disposed of a part of their property in their Will.
A person dies intestate if they die without leaving a Will.
In cases where a person dies intestate, the disposition of their property is controlled by State or Provincial laws (Intestate Succession Laws), and is referred to as Intestate succession.
Cannot be revoked or recalled. In Trust Law a trust that cannot be collapsed or revoked by the grantor/settler. Whether a trust is revocable or irrevocable would determine whether or not the trust income might be taxed in the hands of the grantor/settler or the hands of the beneficiary.
One who co-owns a property or asset. Typically, on death, the deceased share in the asset would pass to the remaining tenant(s) by operation of law. This is referred to as the right of survivorship.
Tenants-in-Common refers to a case where the deceased’s share in the assets or property does not automatically pass to the surviving tenants and would be controlled by the deceased’s Will or the Intestate Succession Laws.
The geographic area in which a court or government has powers or authority to either hear cases or exercise power.
A disposition of personal property by Will. Can also referred to as a bequest. Strictly speaking a legacy is a gift or bequest by Will of personal property whereas a “devise” is a gift by Will of real property.
Conforming to or according to law.
The age at which a person acquires full capacity to make their own contracts, deeds, Wills, etc. In most states a minor reaches legal age at 18 although for certain acts (example drinking alcohol, etc.) it may be higher.
The legal process whereby a child’s legal rights and duties towards his natural parents are terminated and similar rights and duties towards his adoptive parents are substituted.
In Estate Law, “of sound mind and body”.
Refers to responsibility imposed by operation of law, by court process, or to outstanding debts or obligations.
A trust which operates during the life of the settler/grantor. Also referred to as an active or inter vivos trust.
Refers to health care directives or durable powers of attorney for medical care that sets out wishes in the case of incapacity. Can detail the nature, quality and extent of medical care provided (or withheld) to prolong or sustain life.
Property acquired by spouses during marriage. Sometimes referred to as domestic property. Most states and provinces have laws dealing with division of such property on marriage breakdown (by death or divorce or legal separation).
A child under the age of majority. Such individuals are generally considered under a legal incapacity for purposes of court actions or for the purpose of holding property or entering into contracts until they reach legal age (18 in most states).
Null and Void
Of no validity or effect.
Operation of Law
Referring to the manner in which rights and sometimes liability apply to a person by application of statute or established rules of law. It does not require any act or involvement of the person themselves. By way of example, a Will may be revoked by operation of law where the testator is later married and the Will was not prepared in contemplation of that marriage. Curiously, a divorce by the testator from their spouse after the making of the Will does not revoke the Will by operation of law.
Power of Attorney
An instrument or Deed authorizing another to act as your agent or attorney. The agent is an attorney in fact (as opposed to a legal attorney) and their powers are revoked upon the death of the principal by operation of law. Such power may be general or specific and is revocable.
Refers to the capital sum, debt or obligation as distinguished from the interest or other additions to the capital or principal.
A court procedure by which a Will is determined to be valid or invalid. Probate includes all matters and proceedings pertaining to the administration of estates, guardianships, etc.
The court responsible for overseeing probation of Wills, administration of estates.
A tax levied by some governments on every Will admitted to probate or on the gross value of the personal property of the deceased’s testator. It can also be referred to as an estate tax, inheritance tax, succession tax, etc.
The attorney who looks after the legal work on behalf of the estate.
A debt, liability or obligation that is capable of being proved to the satisfaction of probate court.
Given or owed mutually as between two persons. Wills are said to be reciprocal when made by two or more persons in which they make reciprocal testamentary provisions in favor of each other whether they unite in one Will or each executes a separate Will.
To abandon a claim or a right. In most states a widow may renounce her or relinquish rights under the Will of her husband and claim her statutory rights under domestic or matrimonial laws.
What is left of your Estate after all debts, expenses and legacies (gifts made in the Will) have been paid or transferred out of your Estate.
The recall of some granted power or authority making void the original grant by execution of another instrument (Deed, Will, etc).
Revocation can also take place by operation of law (as in the case of a power of attorney that is revoked by the death of a principal) or by specific act of the party, ie: physical destruction of the original.
To withdraw or recall a prior grant.
See “Common Form”.
Right of an individual to bring or commence a lawsuit. Also, having a sufficient stake in the judicial resolution of a particular controversy to participate in the proceedings.
Succession Taxes or Duties
See “Probate tax”.
See “Joint Tenancy”.
Under early English law a term that referred to disposition of personal property by Will. This is why Wills usually are stated to be the “Last Will and Testament” of an individual. The words “and Testament” are no longer necessary since a Will now relates to both real and personal property.
Having the legal capacity to validly execute a will. Includes being of legal age, and of sound mind.
See “Inter vivos Trusts”.
One who makes or has made a Testament or Will. Historically referred to a male making a Will.
A woman making a Will was referred to as a Testatrix.
Property held by one (Trustee) for the benefit of another (Beneficiary).
A person holding property in trust for another – see Fiduciary above.
Any improper or wrongful persuasion whereby a persons free choice is influenced to commit or refrain from an act that they would not otherwise have done. In the case of Wills it refers to actions to influence a testator’s dispositions under the Will.
Utmost Good Faith
The standard that applies to fiduciaries and trustees. It requires absolutely perfect candor or openness.