Term
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Definition
| A legal instrument which conforms to certain formality requirements and functions to transfer property of the testator at death. A “codicil” is a valid amendment to a will. |
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Term
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Definition
| (1) The property owned by a decedent at death; or (2) The artificial legal person that temporarily comes into being following a decedent’s death comprised of her property which is administered by her personal representative. The estate in this sense may sue and be sued, buy and sell property, file its own federal income tax return, and hire and fire advisors. “Estate” is a slippery term as it was employed (differently) in Property to describe an “estate in land” (e.g., fee simple absolute). |
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Term
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Definition
| (also known as a testatrix (feminine form)) A person who made a will. The term “decedent” may include a testator as well as an individual who died intestate. |
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Term
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Definition
| An estate which is governed by a valid unrevoked will. It might be said: “The decedent died testate” or “the estate was a testate proceeding” (as opposed to a proceeding in intestacy where there is no valid unrevoked will). |
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Term
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Definition
| An act which is intended to transfer property at death and governed by the formality requirements of wills. “Letters Testamentary” refer to the court issued papers showing the appointment of an executor (in South Dakota, “Letters of Personal Representative” are used). |
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Term
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Definition
| (also known as an executrix (feminine form), an estate administrator or a personal representative) A fiduciary appointed by the probate court to administer an estate consistent with the terms of a will (or the intestacy statutes if there is no will). A will typically nominates an executor. If the decedent is intestate, a statute provides for priorities of individuals entitled to appointment (e.g., spouse otherwise adult children, etc.). An executor may also be an heir or devisee. |
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Term
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Definition
| A gift under a will (technically only a gift of real property). “Bequest” technically means only a gift of personal property under a will. Today, the terms are interchangeable. For example, a will may provide: “I give, devise and bequeath Blackacre to Zoe.” An inheritance by reason of a devise or bequest may be termed an “inheritance” or a “legacy.” |
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Term
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Definition
| (also known as a legatee) A person who receives a gift under a will. |
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Term
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Definition
| A person who stands to inherit under the laws of intestacy at a decedent’s death. Heirs can only be determined to be heirs once someone has passed away. |
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Term
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Definition
| The legal process by which an executor is appointed, a decedent is determined to be intestate or testate, property is inventoried, creditors are paid, and distributions are carried out. |
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Term
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Definition
| The passing of property at death. |
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Term
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Definition
| A trust has three parties: a grantor, a trustee and a beneficiary. A trust is in some senses an agreement between a trustee and grantor that the trustee will hold certain property for the benefit of a trust beneficiary. In other senses, a trust is more akin to an artificial legal person like a partnership or a corporation. A trust has a “term” – the time period during which the trustee’s obligations continue and when they end and final distributions are carried out. A trust may be established by a “trust agreement” or a “declaration of trust.” With a declaration of trust, the grantor and the trustee are at least initially the same person, so the grantor “declares” herself trustee of certain property. |
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Term
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Definition
| (also known as a “settlor,” a “trustor”, or a “trustmaker”) The grantor is the person who establishes a trust and transfers property to the trustee. When the trust is irrevocable, after entering into the trust agreement with the trustee and conveying property to the trustee to hold in trust, the grantor’s involvement may end. When the trust is revocable, the grantor may later amend or even revoke (i.e., end) the trust. |
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Term
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Definition
| The trustee is the person responsible for administering trust property for the benefit of a beneficiary. The trustee is a fiduciary and held to a high standard of care. The trustee has legal ownership to trust property as trustee. Thus, typically the trustee can sell trust property but has no right to possess it, use it, or enjoy it. |
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Term
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Definition
| The beneficiary is the person who will enjoy the trust property, consistent with the terms of the trust. The beneficiary has no legal title to trust property but does enjoy an equitable interest. Thus, typically the beneficiary cannot convey or encumber property held trust for him, but may enjoy it as the trustee permits (and the trust agreement directs). |
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Term
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Definition
| The res is the trust estate; property held by the trustee in trust. |
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Term
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Definition
| A trust will provide for how and when distributions shall or may be made by the trustee to the beneficiary. |
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Term
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Definition
| A “spendthrift” trust bars the beneficiary from assigning her interest in the trust and is protected from a beneficiary’s creditors. |
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