Glossary of Wills, Probate and LPA terms

The terminology used when seeking legal advice for Wills, Probate and Lasting Power of Attorney can be difficult to understand.  To help guide you through the process we’ve defined some of the most commonly used terms.

Abatement – If the assets in an estate are insufficient to meet all legacies, the amount of the legacies is reduced pro rata. This process is referred to as abatement.

Ademption – A gift fails by ademption if the property identified in the will does not form part of the estate of the testator at the date of death.

Administrator (feminine: administratrix) – A person empowered by the grant of letters of administration to deal with the estate of anyone who has died without leaving a will or without effectively appointing an executor in a will.

Advancement – The release of capital or assets to a beneficiary out of his notional share of a trust fund, prior to the time when he is entitled to benefit.

Affidavit – A statement made in writing and on oath which is sworn or affirmed before an individual who has authority to administer oaths.

Ambulatory – Not effective until the testator dies.

Annuity – A fixed sum payable at specified intervals over a specified period.

Appropriation – The allocation of a specific part of the estate in satisfaction of a particular entitlement.

Assent – To bear witness to something.

Assets – A fund of money or property of any kind. Trust assets originally belonging to the settlor that have been transferred to trustees to hold on trust for the beneficiaries. Asset management is the management of assets on behalf of another.

Attestation clause – A clause found at the end of a deed or document which confirms that a party to the deed or document has signed the same in the presence of a witness.

Attorney – A person empowered under a power of attorney to act on behalf of another person.

Beneficial owner – Equitable owner. Owner in equity rather than in law.

Beneficiary -An individual receiving a legacy or benefit under a will or on intestacy.

Bequest – A legacy or gift

Bona vacantia – On intestacy, if there is no relative entitled to benefit, the estate passes as bona vacantia to the Crown or the Duke of Cornwall or the Duchy of Lancaster.

Caveat – This acts as a stop on an estate, preventing the issue of a grant.

Certified copy – A copy of a document which is certified by the solicitor in whose custody the original is held, as being a true copy of that original document.

Charge – Also known as a mortgage, a charge is often given by a company or individual to a bank or other lender as security for a loan. In the event of default, the lender may exercise rights over the charged property, often including a power to sell it and use the proceeds to repay the loan.

Chattels – Personal property, including furniture, furnishings and movable goods.

Chose in action – A chose is a thing in French so a chose in action is a ‘thing’ in action. It is a thing that one cannot possess, but only have a right to it or a right in law to claim it. For example, a right to sue a person for breach of contract or a tort is capable of being assigned to another party. It develops a value of its own.

Citation – A citation is used to speed up the issue of a grant of representation if the executor or other person entitled in priority to the grant is failing to take action.

Codicil – A document, attested in the same way as a will, which amends an existing will.

Commissioner for oaths – A solicitor or legal executive empowered to administer oaths.

Constructive trust – A remedy imposed by a court with equitable powers when a guilty party has been unjustly enriched.

Contingent interest – An interest in property that takes effect only upon the occurrence of a certain event, such as attaining 21 years of age, or marriage.

Conveyance – A document which transfers legal title to freehold land from the seller to the buyer.

Creditor – A person or entity to whom another (the debtor) owes money. A judgment creditor is a person/entity to whom a court has ordered another (the judgment debtor) to pay money.

Covenant – An agreement or promise embodied in a deed by which a party binds himself to undertake or to refrain from undertaking a particular action. A covenant can also be worded to be binding on land.

Debt – Sum of money owed to another. Debt instrument includes a promissory note recording the terms of a short-term loan.

Debtor – Individual or entity who owes money to another (the creditor).

Deceased – A person who has died.

Declaration of trust – Trust instrument executed by the trustees.

Deed – A document executed with the necessary formalities to make it into a deed.

Discretionary trust – The shares of each beneficiary are at the discretion of the trustees’ cf. ‘fixed interest trust

Devise – Traditional term used for a gift of land by will.

Domicile – Normally the permanent home of an individual.

Donatio mortis causa and donationes (the plural) – A gift made in contemplation of, and conditional on, death and which is perfected and becomes effective on the death of the person making the gift.

Donee – A person receiving property by way of gift.

Donor – A person transferring property by way of gift.

En-ventre sa mere – An unborn child in the mother’s womb.

Enduring power of attorney – A deed made prior to 1 October 2007 complying with certain formalities by which a donor authorises a donee (the attorney) to act on his behalf, such authority continuing even if the donor becomes mentally incapable.

Estate – The assets and property belonging to a deceased person. It has different meanings for probate and IHT purposes.

Execution – The act of signing a deed or document such as a will with all necessary formality.

Executor (feminine: executrix) – A person appointed by will to deal with the administration of an estate.

Fiduciary (noun) – A duty owed by a fiduciary to act in the best interests of the person to whom the duty is owed.

Grant of probate – The grant issued to an executor confirming his appointment and authority to deal with the administration of an estate.

Grant of representation – The collective term for a grant of probate or letters of administration.

Holograph – Handwritten; alternatively, a document which is entirely the personal written work of the testator.

In extremis – At the point of death.

Inheritance Tax – Tax payable on an estate or chargeable lifetime transfers. The amount of tax payable depends on the value of the estate or transfer after applying exemptions and reliefs.  The rate of tax depends on whether the chargeable estate or transfer exceeds the applicable nil rate bands (currently £325,000 for an individual).  Tax is charge at 0% for amounts within the nil rate bands and 40% for any amount which exceeds the nil rate bands.

In specie – In precise form, exactly the same.

Indemnity – An arrangement or agreement to protect an individual against loss, damage or expense.

Inter vivos – Between living beings. It is used where an individual makes gifts or settlements during his lifetime. The recipient need not necessarily be a human being, but could be a body corporate or unincorporated body.

Intestate – A person who has died without leaving a valid will or without disposing of all his estate by will.

Joint and several – If the parties to an agreement declare themselves to be jointly and severally liable, they are stating that both of them accept liability for the whole debt or obligation and not simply for a proportionate part of it.

Joint tenants – If co-owners of property own as joint tenants, on the death of one, the property automatically passes and belongs to the survivor(s) by reason of survivorship. The interest of a deceased joint tenant is not part of his estate for probate or succession purposes.

Lasting power of attorney – A deed made on or after 1 October 2007 complying with certain formalities by which a donor authorises a donee to act on his behalf in relation to personal welfare and/or his property and financial affairs. The authority continues even if the donor becomes mentally incapable.

Legacy – A gift under a will (traditionally a gift of non-land but now accepted as any property).

Legal owner – Person who owns the legal interest in an asset and is said to have rights in rem enforceable against the whole world. May hold the legal interest on behalf of another, i.e. the beneficial, equitable owner.

Letters of administration – A grant of representation issued to empower an administrator to administer the estate of a deceased person in the absence of a grant of probate if there is no executor.

Life assured – The individual whose life is insured under a life assurance policy.

Life tenant – A person under a trust or settlement who has a life interest, that is, the right to receive the income or enjoy possession of the trust property for life (or a lesser period e.g. until re-marriage).

Living Will – A commonly used term to describe a document expressing wishes regarding medical treatment.  The person signing it requests that certain medical treatment should, or should not, be given in a particular situation if he/she is not able to consent or refuse such treatment at the time.

Mirror Will – Two simple single wills for each person where the contents ‘mirror’ each other e.g. a husband and wife leaving everything to each other then passing to their children on the death of the surviving spouse.

Nominee – An agent acting on behalf of another: the principal. A nominee shareholder is a person who holds shares as agent subject to a bare trust on behalf and in favour of the beneficial owner of the shares.

Nuncupative – Orally declared

Oath – A sworn document.

Per capita – See Per stirpes, below.

Per stirpes – A method of dividing an estate so that each branch of the family receives an equal share, regardless of how many people are in each branch. So, if A and B are the children of the deceased, but B has already died having left children C, D, E and F (as grandchildren of the original deceased), then A receives one half and each of B’s four children receive one-eighth of the estate (essentially, by sharing B’s half). Per stirpes is different from per capita, because if a per capita distribution is prescribed, then each person is treated equally, rather than each branch and so, in the example, A, C, D, E and F would each receive one-fifth.

Perpetuity – Continuing indefinitely, forever.

Personal representatives (PRs) – The generic term used to describe executors and administrators.

Portfolio – A collection of different shareholdings or other investments.

Power of attorney – A legal document, usually a deed, empowering one person to act for another and bind him to contracts/transactions, etc.

Precedent – (1)  A template or example of a document which can then be adapted for use in connection with similar transactions.

(2) The decision of a court which is then referred to and possibly followed in subsequent similar cases.

Probate – the administration of a will or the estate of a deceased person without a will.

Real property – The term used to describe land as opposed to personal possessions.

Resulting trust – Occurs automatically when a trust fails and the trust properly ‘results’ back to the settler or, if he is dead, to the settlor’s estate.

Settled land – Land held in trust under a special type of settlement made prior to 1997 where the trust usually grants lifetime rights or interests in property to successive generations of a family.

Settlement – A trust.

Settlor – Someone who creates a trust or settlement during his lifetime.

Standing search – A formal application to the Probate Registry to ascertain information about a grant.

Statute – An Act of Parliament.

Statutory declaration – A sworn or affirmed statement made in writing before a person entitled to administer oaths. It differs from an affidavit in that it has force by virtue of an Act of Parliament.

Statutory instrument – A form of legislation which is not itself an Act of Parliament but which is made under the authority of an Act of Parliament.

Strict settlement – See Settled land.

Sui juris – Of full age and capacity.

Tenant for life – An individual who has lifetime rights in respect of settled land.

Tenants in common – If co-owners own property as tenants in common, each has a defined share or interest and, on death, this will pass in accordance with his will or the intestacy rules and will not necessarily pass to the surviving co-owners.

Testament – A will or codicil.

Testamentary disposition – A gift made by will or codicil.

Testator (feminine: testatrix) – The individual making a will or codicil.

Trustee – An individual entrusted with the legal title to and management of property, but who holds the same for the benefit of others.

Vesting assent – See Assent.

Vested – A present fixed right to future enjoyment of property. Does not depend upon some future condition being satisfied.

Will – A document that disposes of a person’s estate upon death.