WILL AND PROBATE TERMS

All attempts are made to provide accurate information. However, nothing contained herein should be relied upon as legal advice or legal authority. Nothing contained herein should be substituted for the advice of competent legal counsel.

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.

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.”

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.

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.

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.

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.

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.”

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.

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.”

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.

Representative: Includes executor, administrator, and guardian. See “Personal Representative.”

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.

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.”

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.