Cathy Cranford's Genealogy Site ~ Legal Terms

Legal Terms

Administration (of an Estate) - The court-supervised distribution of the probate estate of a deceased person. If there is a will that names an executor, that person manages the distribution. If not, the court appoints someone, who is generally known as the administrator. In some states, the person is called the "personal representative" in either instance.

Administrator ad litem - A person appointed by a probate court to represent an estate during a lawsuit. (Ad litem is Latin for "during the litigation.") An administrator ad litem is appointed only if there is no existing executor or administrator of the estate, or if the executor or administrator has conflicting interests. Appointed when a person has died without a will or a will that fails to name a person to carry out this task.

Administratrix - An outdated term for a female administrator -- the person appointed by a court to handle probate on behalf of someone who died without a will. Now, whether male or female, this person is called the administrator.

Annexed – To join or to add to.

Appraisal - A determination of the value of something, such as a house, jewelry or stock. A professional appraiser -- a qualified, disinterested expert -- makes an estimate by examining the property, and looking at the initial purchase price and comparing it with recent sales of similar property. Courts commonly order appraisals in probate, condemnation, bankruptcy or foreclosure proceedings in order to determine the fair market value of property. Banks and real estate companies use appraisals to ascertain the worth of real estate for lending purposes. And insurance companies require appraisals to determine the amount of damage done to covered property before settling insurance claims.

Appraiser - A person who is hired to determine the current value of real estate or other property.

Attestation - The act of watching someone sign a legal document, such as a will or power of attorney, and then signing your own name as a witness. When you witness a document in this way, you are attesting -- that is, stating and confirming -- that the person whom you watched sign the document in fact did so. Attesting to a document does not mean that you are vouching for its accuracy or truthfulness. You are only acknowledging that you watched it being signed by the person whose name is on the signature line.

Beneficiary - A person or organization legally entitled to receive benefits through a legal device, such as a will, trust or life insurance policy.

Bequeath - A legal term sometimes used in wills that means "leave"

Bond - (1) A written agreement purchased from a bonding company that guarantees a person will properly carry out a specific act, such as managing funds, showing up in court, providing good title to a piece of real estate or completing a construction project. If the person who purchased the bond fails at his or her task, the bonding company will pay the aggrieved party an amount up to the value of the bond. (2) An interest-bearing document issued by a government or company as evidence of a debt. A bond provides pre-determined payments at a set date to the bond holder. Bonds may be "registered" bonds, which provide payment to the bond holder whose name is recorded with the issuer and appears on the bond certificate, or "bearer" bonds, which provide payments to whomever holds the bond in-hand.

Charge - A formal accusation of criminal activity. The prosecuting attorney decides on the charges, after reviewing police reports, witness statements and any other evidence of wrongdoing. Formal charges are announced at an arrested person's arraignment.

Codicil - A supplement or addition to a will. A codicil may explain, modify, add to, subtract from, qualify, alter or revoke existing provisions in a will. Because a codicil changes a will, it must be signed in front of witnesses, just like a will.

Complaint - Papers filed with a court clerk by the plaintiff to initiate a lawsuit by setting out facts and legal claims (usually called causes of action). In some states and in some types of legal actions, such as divorce, complaints are called petitions and the person filing is called the petitioner. To complete the initial stage of a lawsuit, the plaintiff's complaint must be served on the defendant, who then has the opportunity to respond by filing an answer. In practice, few lawyers prepare complaints from scratch. Instead they use -- and sometimes modify -- pre-drafted complaints widely available in form books.

Death Taxes - Taxes levied at death, based on the value of property left behind. Federal death taxes are called estate taxes. Some states levy inheritance taxes on people who inherit property.

Deed - A document that transfers ownership of real estate.

Discharge of Probate Administrator - A court order releasing the administrator or executor from any further duties connected with the probate of an estate. This typically occurs when the duties have been completed but may happen sooner if the executor or administrator wishes to withdraw or is dismissed.

Disinherit - To deliberately prevent someone from inheriting something. This is usually done by a provision in a will stating that someone who would ordinarily inherit property -- a close family member, for example -- should not receive it. In most states, you cannot completely disinherit your spouse; a surviving spouse has the right to claim a portion (usually one-third to one-half) of the deceased spouse's estate. With a few exceptions, however, you can expressly disinherit children.

Durable Power of Attorney - A power of attorney that remains in effect if the principal becomes incapacitated. If a power of attorney is not specifically made durable, it automatically expires if the principal becomes incapacitated.

Durable Power of Attorney for Finances - A legal document that gives someone authority to manage your financial affairs if you become incapacitated. The person you name to represent you is usually called your agent or attorney-in-fact.

Durable Power of Attorney for Health Care - A legal document that you can use to give someone permission to make medical decisions for you if you are unable to make those decisions yourself. The person you name to represent you may be called an agent, attorney-in-fact, health care proxy, patient advocate, or something similar, depending on where you live.

Estate – Property owned at the time of a person’s death.

Estoppel by Deed - A type of estoppel that prevents a person from denying the truth of anything that he or she stated in a deed, especially regarding who has valid ownership of the property. For example, someone who grants a deed to real estate before he actually owns the property can't later go back and undo the sale for that reason if, say, the new owner strikes oil in the backyard.

Estoppel by Silence - A type of estoppel that prevents a person from asserting something when she had both the duty and the opportunity to speak up earlier, and her silence put another person at a disadvantage.

Executor- The person named in a will to handle the property of someone who has died. The executor collects the property, pays debts and taxes, and then distributes what's left, as specified in the will. The executor also handles any probate court proceedings and notifies people and organizations of the death. Also called personal representatives.

Executrix - An old-fashioned term for a female executor--the person named in a will to handle the distribution of the deceased person's property. Now, whether male or female, this person is called either the executor or the personal representative.

Family Allowance - A certain amount of a deceased person's money to which immediate family members are entitled at the beginning of the probate process. The allowance is meant to help support the surviving spouse and children during the time it takes to probate the estate. The amount is determined by state law and varies greatly from state to state.

Final Beneficiary - The person or institution designated to receive trust property upon the death of a life beneficiary.

Funding a Trust - Transferring ownership of property to a trust.

Future Interest - A right to property that cannot be enforced in the present, but only at some time in the future.<

Grant Deed - A deed containing an implied promise that the person transfering the property actually owns the title and that it is not encumbered in any way, except as described in the deed. This is the most commonly used type of deed.

Grantor - Someone who creates a trust. Also called a trustor or settlor.

Grantor Retained Income Trusts - Irrevocable trusts designed to save on estate tax. There are several kinds; with all of them, you keep income from trust property, or use of that property, for a period of years. When the trust ends, the property goes to the final beneficiaries you've named.

Guarantor - A person who makes a legally binding promise to either pay another person's debt or perform another person's duty if that person defaults or fails to perform. The guarantor gives a "guaranty," which is an assurance that the debt or other obligation will be fulfilled.

Guaranty - When used as a verb, to agree to pay another person's debt or perform another person's duty, if that person fails to come through. As a noun, the written document in which this assurance is made. For example, if you cosign a loan, you have made a guaranty and will be legally responsible for the debt if the borrower fails to repay the money as promised. The person who makes a guaranty is called the guarantor. Also known as a guarantee or warranty.

Guardian of the Estate - Someone appointed by a court to care for the property of a minor child that is not supervised by an adult under some other legal method, such as a trust. A guardian of the estate may also be called a "property guardian" or "financial guardian."

Heirs - One who receives property from someone who has died. While the traditional meaning includes only those who had a legal right to the deceased person's property, modern usage includes anyone who receives property from the estate of a deceased person.

Heir Apparent - One who expects to be receive property from the estate of a family member, as long as she outlives that person.

Intestate - dying without a valid will. The probate court appoints an administrator to distribute the deceased person's property according to state law.

Inventory - A complete listing of all property owned by a deceased person at the time of death. The inventory is filed with the court during probate. The executor or administrator of the estate is responsible for making and filing the inventory.

Life Beneficiary - A person who receives benefits, under a trust or by will, for his or her lifetime.

Living Trust - A trust you can set up during your life. Living trusts are an excellent way to avoid the cost and hassle of probate because the property you transfer into the trust during your life passes directly to the trust beneficiaries after you die, without court involvement. The successor trustee--the person you appoint to handle the trust after your death--simply transfers ownership to the beneficiaries you named in the trust. Living trusts are also called "inter vivos trusts."

Petition - A formal written request made to a court, asking for an order or ruling on a particular matter.

Petitioner - Someone who initiates an action requesting something; for example, someone who starts a lawsuit or petitions a higher court on appeal.

Plantiff - The person, corporation or other legal entity that initiates a lawsuit. In certain states and for some types of lawsuits, the term petitioner is used instead of plaintiff.

Plea - The defendant's formal answer to criminal charges.

Probate Court- The court process following a person's death that includes proving the authenticity of the deceased person's will. appointing someone to handle the deceased person's affairs identifying and inventorying the deceased person's property paying debts and taxes identifying heirs, and distributing the deceased person's property according to the will or, if there is no will, according to state law. Formal court-supervised probate is a costly, time-consuming process and is best avoided if possible.

Quit Claim Deed - A deed that transfers whatever ownership interest the transferor has in a particular property. The deed does not guarantee anything about what is being transferred, however. For example, a divorcing husband may quitclaim his interest in certain real estate to his ex-wife, officially giving up any legal interest in the property.

Testate - A person who dies with a will is said to have died "testate.”

Will - A document in which you specify what is to be done with your property when you die and name your executor. You can also use your will to name a guardian for your young children.

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