Estate Planning Terms

Estate Planning Terms

Estate planning terms and definitions listed in alphabetical order.  To help the novice understand the legal terms used by attorneys in estate planning.

A/B Trust – A type of Revocable Living Trust used by married couples. In this type of living trust, two trusts (trust A and trust B) are created at the time the first spouse dies. By dividing the couple’s estate into two trusts at the first death, each spouse can pass the maximum amount of property allowed to avoid federal estate taxes. One trust, usually trust A, is often referred to as the marital deduction trust and the other trust, usually trust B, is often referred to as the shelter trust.

Accumulation Trust – A type of trust which retains and accumulates income for longer than a year, instead of paying all of the income out to the beneficiaries at least annually. These types of trusts are also known as complex trusts.

Administrator - The person designated by the court to manage and distribute a probate estate when there isn’t a will. If there is a will, the person so designated is called the executor (male), executrix (female), or personal representative.

Adult – Any person over the age of 18 or 21 years. The age of an adult depends on specific state laws.

Affidavit – A sworn, written statement executed under oath in front of a witness or witnesses.

Affidavit of Domicile – A sworn, written statement verifying city, county and state of residence.

Affidavit of Survivorship - A sworn, written statement verifying the identity of the survivor in a joint tenancy or other property ownership relationship.

Ancillary probate - A probate proceeding conducted in a state other than the state where the decedent lived and the primary probate occurs.

Annual Exclusion - The amount of property the IRS allows a person to gift to another person during a calendar year before a gift tax is assessed and/ or a gift tax return must be filed. The amount is increased periodically. There is no limit to the number of people you can give gifts to which qualify for the annual exclusion. To qualify for the annual exclusion, the gift must be one that a recipient can enjoy immediately and have full control over.

Ante-nuptial Agreement - A contract between two potential marriage partners specifying how the property owned by each prior to marriage and owned individually or jointly during marriage will be divided should the couple divorce.

Ascertainable Standard – The IRS defined standard which governs the use of trust B property and prevents the property from being considered part of the trustee’s property for estate tax purposes. The standard is defined as “health, education, maintenance and support” of the surviving spouse and children.

Asset Protection - Protecting your property from legal problems and taxes during your life and after your death.

Basis – A tax term, which refers to the original or acquisition value of a property, used to determine the amount of tax that will be assessed. The basis is deducted from the sales price of the property when it is sold to determine the profit or loss.

Beneficiary – The person(s) or organization(s) who receive(s) the benefits of trust property held under the terms of a trust.

Bequest - An old legal term meaning to give a gift or leave property under the terms of a will.

Bond - An insurance policy used to ensure a legal representative will do his job and not misuse or steal funds he is controlling. The bond guarantees that a certain amount of money will be paid if a party is injured due to acts of the legal representative.

By Right of Representation – Common terminology for the Latin term, Per Stirpes. This is the most common way of distributing an estate such that if one of the children is dead, his children share equally in his share of the estate distribution. This term is often summarized by the phrase, “if the parent is dead his children stand in his shoes.”

Charitable Remainder Trust – A trust used to make large donations of property or money to a charity so the person making the gift or donation can obtain a tax advantage. In a charitable remainder trust, the donor reserves the right to use the trust property during his life or some other specified time period, and when the agreed period is over the property goes to the charity.

Codicil - A written change or amendment to a will.

Community Property - Some state laws require that all assets acquired during a marriage belong equally to both spouses, except for gifts and inheritances given specifically to one spouse. The eight states with such laws are known as community property states. The eight states are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas and Washington. Puerto Rico also uses the community property system, and Wisconsin has a modified community property system.

Complex Trust – See Accumulation Trust

Conservator – A person appointed to be legally responsible for the management of property and money belonging to a minor or incompetent person. The conservator may act as the guardian or the guardian may be a separate person and the conservator will just work with the guardian.

Conservatorship - A court controlled program where a conservator is appointed by the court to manage the monetary affairs of a person(s) who is unable to manage his/her own affairs.

Contract - An agreement between two or more parties. It may be oral, but generally it is written.

Creditor - A person or institution to whom money is owed.

Custodial Parent – The parent given custody and responsibility by the divorce court for the children of the divorced couple.

Decedent - The person who has died.

Death taxes – Taxes levied on the property of a deceased person. Federal death taxes are usually referred to as estate taxes. Local and state death taxes are often referred to as inheritance taxes, or simply death taxes.

Deed - A written document used to evidence ownership and/or transfer title to real estate.

Debtor – A person who owes money.

Devise - A legal term referring to real estate which passes through a will.

Disclaimer - The refusal of a beneficiary to accept property willed to him. When a disclaimer is made, the property is generally transferred to the person next in line under the will. A disclaimer is also called a renunciation.

Dispositive Provision - A clause in a will or trust that gives away property.

Disposition - The parting with or giving away of property.

Disinherit - Cutting a person off from his or her inheritance in an estate where he or she would have been a natural heir.

Doctrine of Independent Significance – The legal power to make reference in one document to an independent document that stands alone. By making reference to the independent document, the law will allow the independent document to be incorporated into the document making reference to it.

Domicile – The state or county which is the primary residence of a person.

Donee – A person who receives a gift.

Donor - A person who makes a gift.

Durable Power of Attorney – A document established by an individual (the principal) granting another person (the agent) the right and authority to handle the financial and other affairs of the principal. The Durable Power of Attorney survives through the period of incompetency of the principal.

Durable Power of Attorney for Health Care – A document established by an individual (the principal) granting another person (the agent) the right and authority to handle matters related to the health care of the principal.

Due-on-sale Clause – A clause in a mortgage document which requires that the mortgage be paid in full if the encumbered property is transferred.

Escheat - A legal word that describes the situation where property transfers to the ownership of the state government because there are no legal inheritors to claim it.

Estate - The aggregate of all assets and debts held (owned) by an individual during his or her life or at the time of his or her death.

Estate Taxes – Taxes imposed on the “privilege” of transferring property by reason of death. Estate tax is most commonly used in reference to the tax imposed by the Federal Government rather than the state government. Estate taxes are intended to raise revenue for the government and break up a family’s wealth, so that the nation’s wealth doesn’t concentrate in the hands of a few families.

Executor/ Executrix - The person (male/female) named in a will to manage a decedent’s estate. The more modern term is a “personal representative,” which removes any reference to the sex of the person.

Exemption Equivalent - When property is given as a gift or passed to heirs as part of an estate, it is subject to federal estate and gift tax laws. Each person is given a tax credit (the “unified credit”) that can be used to offset the tax assessed against a specific amount of property. The amount of property that results in a tax exactly equal to the unified credit is known as the “exemption equivalent” (see Appendix 1 for exemption equivalent values). Technically, no property is exempt from federal estate and gift taxes, but the term exemption equivalent is commonly used. Stated another way, the unified credit is equal to the amount of tax due on a gift or estate transfer of property that has a value equal to the exemption equivalent amount.

Family Trust – Another name for a living trust.

Fiduciary – A person with the legal duty to act primarily for another’s benefit in a position of trust, good faith, candor and responsibility. “Fiduciary” is often used as an alternative term for “trustee.”

Fiduciary Duty – The duty of a fiduciary to act in a position of trust, good faith, candor and responsibility, on behalf of another. The duty is one of the best defined responsibilities under the law and is very strictly enforced by the courts.

Fraud – The use of deception for unlawful gain.

General Power of Attorney – A legal document that, when properly executed, gives one person (the agent) full legal authority to act on behalf of another (the principal). The scope of the document can be as broad or narrow as you desire as defined in the document. A general power of attorney becomes invalid when the principal dies or becomes incompetent.

Gift - A transfer of property without receiving some benefit in return. The person making the transfer cannot be obligated in any way to make the transfer.

Gift Taxes – Taxes levied by the Federal Government on gifts. Gift taxes and estate taxes have been “merged” into a single tax called the “unified tax.”

Grantor - The person who establishes a trust and transfers assets into it. Other terms for the “grantor” include “trustor” and “settlor.”

Grantor Trust - A trust in which the person establishing the trust retains enough “ownership rights” or “incidents of ownership” that the person is treated by the IRS as the owner of the trust assets for tax purposes. The right to revoke the trust is sufficient to make the trust a grantor trust.

Gross Estate - The total value of an estate at the date of the decedent’s death. The value is determined before debts and other “deductions” are subtracted from the estate value.

Guarantor - A party who guarantees repayment of a loan, using their own assets if necessary.

Guardian – A person designated by court appointment and given the responsibility of managing the personal affairs of a minor child or a person that is legally incompetent to manage his or her own affairs.

Heir - A person who, by law, inherits property from a deceased relative who didn’t leave any type of will or trust which distributes his or her property after death. The term is more “loosely” used to refer to a person who receives property from a decedent through any means.

Heirloom - A personal possession that usually has a sentimental value which exceeds its monetary value.

Holographic Will - A do-it-yourself handwritten will. To be valid this will must be totally in your own handwriting, signed and dated. About 20 states allow holographic wills, but it is best to have a more formal will.

Homestead Laws - State laws which protect your house, clothing, and personal property, up to a specific dollar amount, from being taken away by most types of lawsuits or bankruptcies.

Household Items - The phrase in a will which indicates everything which may be used for the convenience of the house such as tables, chairs, bedding, etc. Apparel, books, weapons, and the like are not included.

Incapacitated - A person who is legally incapable of managing his or her own business affairs. A person may be permanently or temporarily incapacitated. A probate court usually decides if a person is incapacitated or not. “Incapacitated” is often used interchangeably with “incompetent.”

Incidents of Ownership - All or any management control over a trust or an insurance policy. In relation to an insurance policy, incidents of ownership include the right to change the beneficiaries, borrow cash value, and change the ownership, among other rights.

Income Tax - A tax assessed on gain made by an individual or entity.

Incompetent - A person who is legally incapable of managing his or her own business affairs. A person may be permanently or temporarily incompetent. A probate court usually decides if a person is incompetent or not. “Incompetent” is often used interchangeably with “incapacitated.”

Independent Trustee - A trustee who is unrelated to the person who establishes a trust (the grantor) and the beneficiaries of the trust. Unrelated attorneys, banks, corporations, etc., are usually chosen to act as independent trustees. The IRS requires a trust to have an independent trustee if the trust is to achieve certain estate tax and income tax benefits available to irrevocable trusts (not living trusts).

Inherit – To take or receive property by legal right from a deceased person.

Inheritance Tax - A tax imposed upon the transfer of property from a deceased person’s estate. “Inheritance Tax” is a term which is usually applied to the taxes charged by a state, where as the taxes imposed by the Federal Government are usually referred to as estate taxes.

Inter Vivos Revocable Trust - One name for a living trust. “Inter vivos” is Latin for “between the living.”

Intestate – To die without a will or other valid estate transfer devise.

Intestate Succession – The order of persons entitled to received property distributed by a state court when the deceased failed to write a will or trust, or the will or trust has failed to legally distribute the deceased person’s property.

Irrevocable Trust - A trust that cannot be changed, canceled, or “revoked” once it is set up. A “living trust” is not an example of an irrevocable trust. Insurance trusts and “Children’s Trusts,” or “2503 Trusts,” are examples of irrevocable trusts. Irrevocable trusts are treated by the IRS very differently than revocable trusts.

Insurance Trust – An irrevocable trust used to hold insurance and pass it on to your heirs without any estate taxes on the death benefits of the policy.

Issue – A legal term used in wills and trusts meaning one’s children, grandchildren, etc., either through birth or adoption.

Joint Ownership – The situation where two or more people own the same piece of property together. The property can be “owned” by the people as joint tenants, tenants in common, tenants by the entirety and other legally defined relationships.

Joint Tenancy – When two or more people take title to the same property and simultaneously each owns 100% of the property, or has full rights to the property. At the death of one joint tenant, his or her share immediately transfers to the ownership of the survivor(s).

Jurisdiction - The location where a person has access to the court system. The place where a person lives usually determines which court has the legal right to adjudicate his or her claims, probate proceedings, or other matters. The location of real property can also determine the “jurisdiction” of legal matters related to that property.

Letters Testamentary - A formal court order (document) issued by a probate judge giving the personal representative authority to conduct business, contract, sell estate property, pay bills, distribute estate property, and otherwise act on behalf of the estate.

Life Estate – The right to have all of the benefit from a property during one’s lifetime. The person with the right doesn’t own the property, and when he or she dies, the property is not included in his or her estate.

Life Insurance Trust - A type of irrevocable trust used to hold life insurance. When a life insurance policy is held in an insurance trust, it is protected from estate taxes when the insured dies; provided the trust is established properly, managed properly, and the insured does not retain any “incidents of ownership.”

Revocable Living Trust – See Living Trust

Living Trust – A type of revocable trust used in estate planning to avoid probate, help in situations of incompetency, and allow “smooth” management of assets after the death of the grantor or person who established the trust. The trust can be effective in eliminating or reducing estate taxes for married couples. Revocable Living trusts are established during the life of the grantor, who retains the right to the income and principal and the right to amend or revoke the trust. When the grantor dies, the trust becomes irrevocable and acts as a substitute for a traditional will.

Living Will - A document defining your “right to die.” It usually states that you do not want to have your life artificially prolonged by modern medical technologies. You can specifically define the means which you do not want used or do want used.

Lunch Theory of Justice – Lee’s theory concerning the way courts dispense justice, i.e., the outcome of a case depends on what the judge or jury ate for lunch. We don’t really believe that, because we have a deep respect for the jury system, but the outcome of some cases can’t be explained any other way.

Loving Trust - Another name for a living trust. The term “loving trust” was popularized in the 1980′s by a group selling living trusts.

Marital Deduction - The unlimited deduction allowed under federal estate tax law for all qualifying property passing from the estate of the deceased spouse to the surviving spouse. The value of the property passing to the surviving spouse under the marital deduction is “deducted” from the deceased spouse’s estate before federal estate taxes are calculated on the estate. Proper planning and use of the deduction allows more property to pass estate tax free to the family.

Marital Deduction Trust - The trust which “receives” the property passed under the marital deduction laws, from the deceased spouse’s estate to the surviving spouse. Property in the marital deduction trust will be included as part of the surviving spouse’s estate (for estate tax purposes) when he or she dies.

Minor - A child who is not old enough to have the legal capacity to govern his or her own affairs. Depending upon the specific state and the specific laws being applied, a minor is usually either under 21 years old or 18 years old.

Net Taxable Estate – The value of an estate upon which the federal estate tax is levied. The net taxable estate or “net value” is the total or “gross value” of the estate less liabilities, expenses and other deductions allowed by the tax laws.

Notice - The legally prescribed process of making someone aware of a legal proceeding or matter.

Notarized - The affirmation of an agent (the notary) of the state affirming that the signature on the document being “notarized” is in fact the signature of the person purportedly signing the document.

Notary - A person who has state granted authority to certify the validity or authenticity of the signature being made on a document.

Pay on Death Account – See POD Account.

Per Capita - A method of distributing an estate such that all of the surviving descendants share equally in the property. Also know as Pro Rata.

Per Stirpes – The most common way of distributing an estate such that if one of the children is dead, his or her children share equally in his or her share. Also know as By Right of Representation.

Perpetuities Savings Clause – A “safety net” clause included in most trusts, which automatically terminates the trust at the last possible moment to prevent any possible violation of trust law caused because the general terms of the trust did not properly provide for a termination of the trust as required by law. Under most state laws a trust must have a finite “life” and end prior to the time required by law.

Personal Letter – A letter directing the distribution of personal items. This letter is referenced in a person’s will and is recognized by the courts upon the death of the person making the will and letter.

Personal Property - Property other than real estate (land and permanent structures on the land). Cars, furniture, securities, bank accounts, and animals are examples of personal property.

Personal Representative – The “modern” term for the executor or executrix, who is the court appointed individual that probates the will and carries out the will’s instructions under court supervision.

POD Account - A bank account that is designed to avoid probate. It is a contract between the bank and the account holder guaranteeing that, upon the account holder’s death, the bank will pay the balance of the account to whomever is designated to receive the account.

Pour-over Trust – A trust designed to receive property that is “poured over” into it. The property is usually “poured over” or received from a pourover will through the probate process.

Pour-over Will - A will which contains a clause that transfers some or all of the assets that pass through the will into a trust for final distribution from the trust. The will’s assets are said to “pour over” into the trust.

Power of Appointment – The power given to a person, by appointment in a will or a trust, to distribute the property that passes through the will or trust at the discretion of the person appointed. Other than to give the appointed person the authority to make the distribution, the will or trust doesn’t make distribution of the property.

Power of Attorney - A document established by an individual (the principal) granting another person (the agent) the right and authority to handle the financial affairs for the principal. A power of attorney becomes invalid at the death or incompetency of the principal, unless the power of attorney is a “durable power of attorney” which remains in effect after the principal becomes incompetent.

Prenuptial Agreement – A contract between two potential marriage partners specifying how the property owned by each prior to marriage and owned individually or jointly during marriage will be divided should the couple divorce.

Primary Beneficiary - The person or persons for whose benefit a trust is originally established. When conditions change and the primary beneficiaries are no longer in a position to receive the benefit of the trust, the benefit goes to the “secondary beneficiaries.”

Probate – The legal process which facilitates the transfer of a deceased person’s property whether they leave a will or don’t leave any will. The court establishes the authenticity of the will (if any), appoints a personal representative or administrator, identifies heirs and creditors, directs payment of debts and taxes, and oversees distributions of the assets according to the will or state law in the absence of a will.

Probate Court - The part of the judicial system dedicated to handling probate matters which includes settlement of intestate and testate estates, adoptions, appointment of guardians, name changes, and other matters.

Probate Estate – A deceased person’s property which is subject to the probate process. Property held in a living trust is usually not considered part of the probate estate.

Probate Fees - The fees, often a percentage of the estate, paid to the attorney and others who handle the probate proceeding.

Proving a Will - The process of establishing the validity of a will before the probate court. (See Self Proving Will)

QTIP Trust – A Qualified Terminable Interest Trust (Q-Tip) is a type of trust which provides an unlimited marital deduction for qualified property put into the trust. However, rather than permitting the surviving spouse to have full power to distribute the property to anyone he or she wishes, the trust restricts the ability of the surviving spouse to distribute the property in the trust to a select group of individuals, such as the children, as agreed when both spouses were alive. Without the new QTIP laws, any attempt to “tie down” the property and restrict the surviving spouse’s rights to transfer the trust property would have resulted in the property not qualifying for the marital deduction tax benefit.

Quitclaim Deed - A document (a deed) that transfers a person’s interest in a piece of real estate, without the warranties or guarantees that are made in a warranty deed.

Revocable Trust - A trust which can be amended or revoked by the person(s) who established the trust.

Real Property - Land and attachments to the land, such as buildings, fences, etc.

Right to Die – The right to decide not to have life prolonged by extraordinary, artificial means.

Rule Against Perpetuities – A rule of law limiting the duration of a trust. Some trusts can go on in perpetuity (forever), but most types of trusts have a maximum duration or life established by law.

Section 2053 Trusts – A type of irrevocable trust, authorized by section 2503 of the IRS code, often established for children. Section 2503 allows annual gifts up to $10,000 to be made to the trust, rather than directly to the child, and still have the gift qualify for the $10,000 annual gift tax exclusion.

Self Proving Will - A will which has been properly witnessed (by either two or three witnesses depending on state laws) and the witnesses have signed an affidavit before a notary public stating that all of the proper formalities of the will’s execution have been complied with. This usually makes it very easy for the court to “prove” the will.

Separate Property - In community property states, all property which is not held commonly by a married couple is considered separate property. In general, it is property owned by one spouse in which the other spouse does not own an interest.

Settlor - A person who establishes a trust. The term settlor is used interchangeably with the terms “trustor” and “grantor.”

Simple Trust - Trusts that are established with terms that require the trust to “pay” all of its income out, so that it does not accumulate income on which income taxes would have to be paid.

Spendthrift - An individual who cannot handle money wisely and spends it wastefully.

Split Gift - Each spouse is entitled to give any individual $10,000 in a calendar year and, provided it is given properly, there is no tax consequence to the giver or receiver according to the “annual exclusion” laws. However, if a married couple tries to give more than $10,000 to an individual, they must file a gift tax form declaring that the gift is split between them. If the form is not filed, the IRS cannot determine who gave the gift or gifts, and one member of the couple may be allocated the entire gift amount. Thus, he or she would actually owe a gift tax because his or her gift was over $10,000.

Springing Power – A power to act on the occurrence of some certain criteria, such as an illness or incompetency. The power is said to spring into existence upon the occurrence of the event. The agent’s power to act for the principal under a durable power of attorney is usually a springing power.

Sprinkle or Sprinkling Power – The power given a trustee to decide how, when and why to distribute trust income to the trust’s different beneficiaries. The sprinkling power allows the trustee to “sprinkle” the trust’s income over the beneficiaries. It is a valuable power to give the trustee in irrevocable trusts because is allows the trustee to distribute income to the beneficiaries who will pay the smallest amount of income tax on the distribution.

Sprinkling Trust – A trust that grants the trustee a sprinkling power which allows the trustee to decide how, when and why to distribute the trust income among the trust’s beneficiaries.

Spouse – Legal term for husband or wife.

Stepped-up Basis – The new basis established for a property after the property has been evaluated and taxed as part of an estate. The new basis or “stepped-up basis” is the value of the property used to assess the estate tax.

Successor Trustee - The trustee who takes over when the initial trustee can no longer function.

Surviving Spouse – The husband or wife that lives after the death of his or her spouse.

Taxable Estate – The portion of an estate that is subject to federal estate taxes or state death taxes. Technically, all of an estate is subject to federal estate taxes, but because of the unified credit, only estates with a value over the exemption equivalent amount actually have to pay any estate taxes (see Appendix 1). Therefore, it is common to refer to an estate with a value over the exemption equivalent amount as a taxable estate and an estate with a value under the exemption equivalent amount as a nontaxable estate.

Tenants by the Entirety – A way of owning property which, for almost all practical purposes, is the same as joint tenants. Tenancies by the entirety are creations of state law and are used only between husbands and wives, whereas joint tenancies can be used by anyone, not just by husbands and wives, who wants to own property jointly.

Tenants in Common - A way of owning property in which two or more owners all “share” ownership of the property. The owners can own various percentages of the whole property, unlike joint tenants which each own an equal share. When one owner dies, his or her share does not “automatically” go to the other owner(s), because tenancies in common do not have a survivorship provision like joint tenancies.

Testamentary Trust – A trust created by a will.

Testate - One who dies leaving a will.

Title – Document proving ownership of property.

Totten Trust – A bank account that is designed to get around probate. The account is created by a person in his or her own name as the trustee for another person. It is a type of revocable trust until the creator dies, then it is paid out to the designated beneficiary(ies).

Trust - A legal document in which property is held and managed by a trustee for the benefit of another known as a beneficiary. A trust is a relationship in which property is held by one person for the benefit of another. The trust can be created verbally, but will most often be in writing.

Trust Certificate - A summary of the trust’s terms prepared by an attorney that evidences the trust exists.

Trust Corpus or Res – The property of a trust.

Trustee – The person or institution that manages the trust property under the terms of the trust.

Trustor - A person who establishes a trust. The term trustor is used interchangeably with the terms “settlor” and “grantor.”

Unified Credit – A tax credit is given to each person by the IRS to be used during his or her life or after his or her death. The tax credit equals the amount of tax (gift or estate) which is assessed on the exemption equivalent value of property. It is considered the “unified” credit because it applies to both gift taxes and estate taxes and results from the IRS’s effort to unify these two taxes or make them consistent. It is often thought that the total value of taxed gifts and estate transfers can equal the exemption equivalent before any tax is assessed. This thought is wrong because a tax is actually assessed on the first dollar of taxable gift or estate property. Note: Some property gifted is not exposed to the unified tax; for example, gifts that qualify for the annual gift tax exclusion. Some property transferred in an estate is not exposed to the unified tax, such as property which goes to a spouse and qualifies for the unlimited marital deduction. Although a tax is assessed on gifts valued over the annual exclusion amount and on all the estate assets the individual doesn’t actually pay the tax on amounts up to the exemption equivalent maximum because the unified credit is applied against the tax.

Uniform Gift to Minors Act - A series of state statutes that provides a method for transferring property by gift to minors who cannot legally manage the property for themselves. The laws allow an adult to manage the property and yet not have it owned by the adult.

Uniform Probate Code - A standardized code designed by the American Law Institute to streamline the probate process. Many states have not adopted the code as part of their laws.

Unlimited Marital Deduction - The tax law that allows a person to give an unlimited value of property as a gift, or leave an estate of unlimited value to his or her spouse without a gift or estate tax being assessed.

Warranty Deed – A deed which warrants that certain contracts will “run” (continue) with your property.

Will – A legal document stating the intentions of a deceased person concerning the distribution of his or her property, and management of his or her affairs following his or her death. State law dictates the legality of a will.