WILL AND PROBATE TERMS
Administration
of an Estate: Any
proceeding relating to the
settlement of a decedent’s
estate, whether testate or
intestate. The proceedings by
which the assets of a decedent
are inventoried and appraised,
the decedent’s debts are
determined and paid, the
amount of taxes calculated and
paid, and the remaining assets
distributed to the persons or
entities entitled to them
either by the terms of the
decedent’s Will or by the
laws of intestacy.
Administrator:
The person appointed by the
court to manage the
decedent’s estate during
administration when the
decedent left no Will (died
intestate). The terms
“representative” and
“personal representative”
are now frequently used in
place of administrator.
Adult:
A person who has attained the
age of 18 years.
Annuity:
A periodic payment of money,
usually monthly, made to a
person for life or a specified
number of years. It is one
method used to settle the
payment of life insurance
proceeds.
Appraiser:
An objective and qualified
person selected by the
personal representative or
appointed by the court to
ascertain and report to the
court the fair market value of
personal and real property in
an estate.
Appraisal:
The process of arriving at the
market value of the assets in
the estate of a decedent
through the use of appraisers
and other objective proof. See
“Valuation.”
Attestation
Clause: The statement
signed by the witnesses to a
Will stating the circumstances
of the execution of the Will
and the testamentary capacity
of the testator.
Attestation
of a Will: The act of
witnessing the execution of a
Will by a testator in the
presence of two witnesses who
also sign the Will in the
presence of each other and the
testator.
Beneficial
Interest, Land Trusts: Any
interest, regardless of how
small or minimal such interest
may be, in a land trust, held
by a trustee for the benefit
of beneficiaries of such land
trust.
Beneficiary:
The recipient of assets of an
estate under a Will or trust
or of the proceeds of a life
insurance policy. See
“Trust” and “Trustee.”
Bequeath:
The act of making a bequest
(gift) in a Will to dispose of
real or personal property by
Will. It includes devise. See
“Devise.”
Bequest:
A gift of personal property
(including cash) by Will. It
is also referred to as a
legacy. Since the legal
distinction between real and
personal property for certain
probate purposes has been
abolished, the term may be
used generally for both real
and personal property. See
“Devise.”
Bondsman:
A person or corporation who
undertakes to pay money in the
event that the personal
representative or other
fiduciary fails to live up to
his obligations and duties.
See “Surety.”
Cause
of Action: A right to sue
another for damages or for the
recovery of a debt or for the
establishment of a right. See
“Claim.”
Child’s
Award: A deduction allowed
by a court used to provide for
the decedent’s immediate
family while the estate is
being administered. See also
“Surviving Spouse’s
Award.”
Claim:
Includes any cause of action.
See “Cause of Action.”
Codicil:
A written document that is an
amendment or supplement to a
Will. A codicil may alter,
modify, or explain the Will.
It is executed with the same
formality as a Will.
Community
Property: The property
acquired by either a husband
or a wife through the efforts
of either spouse while married
and living in a community
property state. Illinois is
not a community property
state. The community property
states in the United States
can be remembered by the words
TWIN CLAN; they are Texas,
Washington, Idaho, Nevada,
California, Louisiana,
Arizona, and New Mexico.
Death
Taxes: Federal estate
taxes due the United States
and estate or inheritance
taxes due the various states.
See “Estate Tax” and
“Inheritance Tax.”
Decedent:
A deceased person, usually the
person whose estate is subject
to administration.
Descendants:
Children, grandchildren,
great-grandchildren. See
“Issue.”
Descent:
Obtaining an interest in an
estate by inheritance from an
intestate estate (when there
is no Will).
Devise:
(As a noun) The property
disposed of by a Will. (As a
verb) To dispose of property
by a Will. Technically,
“bequest” and
“bequeath” are used with
reference to personal
property, and “devise” is
used with reference to real
property. See “Bequeath”
and “Bequest.”
Devisee:
A person who receives real
property pursuant to the
provisions of a Will. Because
of the abolishment of the
distinctions between real and
personal property in probate,
it now means the person to
whom a share of an estate is
given under a Will. It
includes beneficiary,
distributee, and legatee.
Disabled
Person: A person 18 years
or older who (a) because of
mental deterioration or
physical incapacity is not
fully able to manage his
person or estate; (b) is
mentally ill or
developmentally disabled and
who because of his mental
illness or developmental
disability is not fully able
to manage his person or
estate; or (c) because of
gambling, illness, debauchery,
or excessive use of
intoxicants or drugs, so
spends or wastes his estate as
to expose himself or his
family to want or suffering.
See “Incompetent.”
Domicile:
The place where a person has
his true, fixed, and permanent
home combined with an
intention to remain there
indefinitely. A decedent’s
domicile may or may not be the
same as his declared
residence.
Donee:
The person who receives a
gift.
Donor:
The person making a gift.
Encumbrance:
Includes mortgage, real estate
tax or special assessment,
deed of trust, vendor’s
lien, security agreement, and
other lien on property. See
“Mortgage.”
Escheat:
The passing of property to the
state when a decedent dies
without a Will disposing of
the decedent’s property and
without known heirs.
Estate:
All real and personal property
left by a decedent in which he
or she had a right or
interest.
Estate
Tax: A tax on the right to
dispose of property at death.
See “Inheritance Tax” and
“Death Taxes.”
Executor:
The person or party designated
in a Will to act as the
personal representative of a
decedent’s estate.
Expenses
of Administration: All
filing fees, costs of
publications, compensation of
the personal representative
and of the attorneys for the
personal representative, and
all other costs necessary to
carry out the administration
or settlement of a
decedent’s estate.
Fiduciary:
The person or party who holds
property in trust for another
or who has a special
relationship of trust to
another. The personal
representative is a fiduciary.
Generation-Skipping
Tax: A federal tax on
estates that place property in
trust or under a similar
arrangement for the life of
more than one generation of
persons younger than the
person who placed the property
in trust. Current tax law
provides for a Generation
Skipping Transfer Tax
exclusive of $1 million that
may be allocated as the donor
(or his executor) directs
concerning any property as to
which he is considered the
Transferor.
Gift
in Contemplation of Death:
A gift made, or deemed to have
been made, by an individual
who is expecting to die within
the foreseeable future.
Give:
To make a present of; to grant
or bestow by formal action.
Guardian:
A person appointed by the
court to have continuing and
general supervision over the
financial affairs of one not
legally competent to manage
them by himself, such as a
minor or disabled or
incompetent person. See
“Guardian of the Person”
and “Guardian of the
Property.”
Guardian
of the Person: A guardian
who cares for the physical
needs of a minor or disabled
person. See “Guardian.”
Guardian
of the Property: A
guardian who cares for the
property of a minor or
disabled person. A guardian of
property is also known as a
guardian of the estate. See
“Guardian.”
Heir:
Any person who is entitled to
an interest in the estate of a
decedent by reason of the laws
of intestate succession (where
there is no Will).
Incompetent:
Any person who, because of
insanity, mental illness,
mental retardation, old age,
physical incapacity, or
imperfection or deterioration
of mentality, is incapable of
managing his person or estate
and any person who, because of
gambling, idleness,
debauchery, or the excessive
use of intoxicants or drugs,
so spends or wastes his estate
as to expose himself or his
family to want or suffering.
See “Disabled Person.”
Infamous
Crimes: In Illinois
“infamous crimes” are the
offenses of arson, bigamy,
bribery, burglary, deviant
sexual assault, forgery,
incest or aggravated incest,
indecent liberties with a
child, kidnapping or
aggravated kidnapping, murder,
perjury, rape, robbery, sale
of narcotic drugs, subornation
of perjury, and theft, for
which the punishment imposed
is imprisonment in the
penitentiary. Anyone convicted
of any of these crimes is
prevented by statute from
being appointed a guardian or
executor.
Inheritance
Tax: A tax imposed by a
state on the right to receive
property from a decedent’s
estate. See “Estate Tax”
and “Death Taxes.”
Intestate:
Usually refers to a decedent
who died without leaving a
valid Will; partial intestacy
occurs when the Will does not
dispose of all of the estate.
Intestate
Succession: Succeeding to
or receiving property from a
decedent as an heir, by virtue
of statutes of descent and
distribution rather than by
Will.
Inventory:
A listing of all the
decedent’s assets. An
inventory is filed with the
court by the personal
representative in a court
supervised estate.
Issue:
Direct lineal descendants, i.e.,
children, grandchildren,
great-grandchildren, etc. See
“Descendants.”
Joint
Tenancy: Property held by two
or more persons each with an
undivided interest in the
property and with the right of
survivorship, i.e.,
the right to inherit the
property at the death of one
joint tenant. See “Tenancy
by the Entirety” and
“Tenancy in Common.”
Kindred:
Those related by blood, as
distinguished from those
related only by marriage. See
“Next of Kin.”
Last
Will and Testament: A
document that directs the
disposition of the
testator’s property after
death and which is executed in
accordance with certain
statutory requirements. A Will
includes any testaments and
codicils.
Legacy:
Traditionally referred to a
disposition of personal
property by Will, but now
means the same as “devise”
or “bequest,” thus any
testamentary gift, and applies
to real property as well as
personal property. See
“Devise” and
“Bequest.”
Legatee:
The person to whom personal
property is given by Will. The
term includes “devisee.”
See “Devisee.”
Letters
of Administration: The
formal instrument of authority
and appointment given by the
clerk of the probate court to
a personal representative
empowering him to administer
an estate where there is no
Will.
Letters
Testamentary: The formal
instrument of authority and
appointment given by the clerk
of the probate court to a
personal representative
empowering him to administer
an estate, as provided for in
a Will.
Marital
Deduction: The deduction
for federal estate tax
purposes for the value of
property passing on death to
the decedent’s surviving
spouse.
Maternal:
Pertaining to the mother’s
side of the family.
Minors:
Persons of the age of 18 shall
be considered of legal age for
all purposes, except that of
the Illinois Uniform Gifts to
Minors Act, and until this age
is attained, they shall be
considered minors.
Minors
- Uniform Gifts to Minors Act:
A “minor” is a person who
has not attained the age of 21
years.
Mortgage:
A lien or encumbrance on real
estate. Includes trust deed in
the nature of a mortgage. See
“Encumbrance.”
Next
of Kin: An individual’s
nearest blood relatives. See
“Kindred.”
Non-Probate
Estate: Generally,
property passing to an
individual other than by
probate proceedings, such as
jointly owned U.S. bonds,
joint and payable on death
bank accounts, real property
held in joint tenancy, and
life insurance and other
property that passes to a
named beneficiary.
Paternal:
Pertaining to the father’s
side of the family.
Payable
on Death (P.O.D.): A
designation that a life
insurance policy or other
assets in cash or other
property will be paid to one
person upon the death of
another.
Pension:
A regular payment to a person,
usually during retirement,
disability, or fulfillment of
some employment or other type
of service, which may or may
not terminate at his death.
Per
Capita: A Latin phrase
meaning “share and share
alike” used to denote a
method of dividing estate
property by giving an equal
share to each of a number of
persons.
Per
Stirpes: By
representation. A method of
dividing an estate by which a
class or group of distributees
takes the share to which the
group’s deceased ancestor
would have been entitled,
deriving the group’s right
as representatives of the
deceased ancestor and not as
so many individuals. (For
example, if you had two
children, A and B, and A died
before you did but left two
children, the children of A
would receive the same portion
as would have been received by
A if he had been alive, rather
than the property being split
into three equal parts between
B and A's two children.) See
“Right of Representation.”
Personal
Property: All assets other
than land and those things
permanently affixed to the
land. It is also known as
personalty. See “Personalty.”
Personalty can be tangible (a
thing) or intangible (a stock
option, debt owed to you,
etc.).
Personal
Representative: The person
named in a decedent’s will
or determined by law, and then
appointed by the court, to
manage the decedent’s estate
during probate. The term
personal representative is now
generally used in place of
executor, executrix,
administrator or
administratrix. See
“Representative.”
Personalty:
Personal property. See
“Personal Property.”
Posthumous
Child: A child born after
the death of his or her father
or, in rare cases, after the
death of his or her mother.
Power
of Appointment: The
authority given by one person
to another to dispose of the
first person’s property,
either to a limited group of
people (a special power), or
anyone designated by the
appointee of the power (a
general power).
Pretermitted
child: A child of the
decedent not named or provided
for in the decedent’s Will.
The child is presumed to be
“forgotten” and will take
an intestate share.
Probate: To prove, as to prove a
Will. Generally, the process
of administration of a
decedent’s estate under the
supervision of the court.
Public
Administrator: A person
appointed for a county to be
responsible for settling of
decedents_ estates when there
is no one who will proceed to
settle certain estates.
Real
Property: Land and
anything permanently attached
to it.
Representative:
Includes executor,
administrator, and guardian.
See “Personal
Representative.”
Revoke:
To cancel or make ineffective.
Right
of Representation: The
legal standing of one who
succeeds to the rights of
another, e.g., a
devisee or heir, who is said
to represent an ancestor. See
“Per Stirpes.”
Siblings:
An individual’s relatives or
kinsmen; normally used to mean
natural brothers and sisters.
Simultaneous
Death: Denotes the death
of two or more persons in the
same calamity under
circumstances that render it
impossible to determine which
was the first to die or the
last to survive.
Specific
Devise: A devise of a
specific thing or specified
part of the estate of a
testator which is so described
as to be capable of
identification; a gift of a
part of the estate identified
and differentiated from all
other parts.
Spouse:
A married person; husband or
wife.
Surety:
A person or corporation who
undertakes to pay money in the
event that the personal
representative or other
fiduciary fails to live up to
his obligations and duties.
See “Bondsman.”
Surviving
Spouse’s Award: A
deduction allowed by a court
used to provide for the
decedent’s immediate family
while the estate is being
probated. See “Child’s
Award.”
Tenancy
by the Entirety: An
interest in property that
husband and wife own “not as
joint tenants or as tenants in
common but as tenants by the
entirety.” Each owns an
equal share. At the death of
one, his or her share passes
automatically to the other.
The property is subject only
to the debt of both owners and
may be sold only by both
together. See “Joint
Tenancy” and “Tenancy in
Common.”
Tenancy
in Common: An interest in
property that two or more
people own whereby the law
assumes that each owns a
proportionate share of the
property which is generally
directly related to the number
of people who are said to
“own” the property. There
is no right of survivorship in
property held in tenancy in
common. See “Joint
Tenancy” and “Tenancy by
the Entirety.”
Testamentary
Disposition: The act of
disposing of property by Will.
Testamentary
Trust: A trust set forth
by a Will. See “Trust.”
Testate:
Leaving a valid Will at death.
Testator:
A person who has executed a
valid Will.
Trust:
A legal entity, created either
during a person’s lifetime
(an intervivos trust) or by
his Will (a testamentary
trust), which transfers
property to someone (called
the Trustee) for the benefit
of persons designated as
beneficiaries in the trust
instrument. See “Trustee”
and “Beneficiary.”
Trustee:
The trustee or any successor
trustee of a trust, whether
appointed by or pursuant to
the instrument creating the
trust, by order of court, or
otherwise, and including an
individual and a corporation
qualified to administer trusts
in this State. See “Trust”
and “Beneficiary.”
Undue
Influence: Improper
influence affecting the
disposition of another’s
property.
Valuation:
The process of arriving at the
market value of the assets in
the estate of a decedent
through the use of appraisers
and other objective proof. See
“Appraisal.”
Waiver:
The process of giving up some
right, such as notice of
probate proceedings or an
interest in a decedent’s
estate.
Ward:
Ward includes minor and
incompetent. See “Minors”
and “Incompetent.”
Will:
A document that directs the
disposition of the
testator’s property after
death. A will is executed in
accordance with certain
statutory requirements. A Will
includes any testaments and
codicils.
Will
Contest: A proceeding in
court questioning the validity
of a Will or codicil.
Witness to a Will: One who certifies by signing his name that he or she witnessed the making of a Will by a testator.