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Estate Planning and Probate Definitions

Decedent - A person who has died.  A dead person.

Deed - A document which is used as evidence of the ownership of an interest in real estate or as a way to transfer title in real estate.

Estate - The total of a person's assets, whether that person is alive or has died.  The Estate may consist of both real and personal property, separate and community property.  In the case of a decedent, it is the total interests in all property owned by the decedent at the moment of death, prior to distribution after death.

Execute - sign, finish, carry out

Executor / Executrix - A person named in a Will and approved by a Court who is in charge of gathering all the assets of the decedent's estate and managing the claims of creditors of the estate, and accomplishing the legal directives given in the Will including distributing the property to the beneficiaries named in the Will.  The suffix of “-trix” indicates a female.

Guardian - A person appointed by the Court with the right and duty to manage another living person's property for that person's benefit and/or to manage the person's care and well-being.  A guardian may be necessary because of physical, mental, or legal disability such that the person cannot manage their own business. Most commonly, a person may need a guardian because they have not yet reached the age of legal majority or a person of any age may need a guardian because of mental incapacity. A guardianship may be limited in scope or may be temporary in time as the need dictates, but it always requires a court order after an evidentiary hearing to determine the need for the guardian and the guardian will have a bond requirement and strict oversight by the court. 

Independent Executor - In Texas, a Will can specify that the Executor will act independently of the Court after the Executor is appointed.  This saves the Executor much time and money because the duties of the Executor can be performed without bond or Court oversight, but it also means that the person chosen as Independent Executor should be someone trustworthy.

Inter vivos - “from one living person to another living person”; Such as an inter vivos trust is one set up to transfer management and benefits of property from one person to another during the grantor's lifetime. 

Intestate/Intestacy - meaning “without a will,” refers to an estate of a deceased person who died without making a will.

Letters Testamentary - A certificate from the clerk of the Court that certifies that the named person has been appointed by the Court as Executor of a particular estate and that an order has been signed admitting the Will to probate, and that the Executor has qualified for the office by taking their Oath. Provides proof of the legal authority to act on behalf of the estate.

Letters of Administration - A certificate issued by the probate court that certifies that the named person has been appointed by the Court as Administrator of a particular intestate estate or one where the named executor is not to be appointed, and also that the Administrator has qualified for the office by taking an Oath and posting bond.  Equal to Letters Testamentary evidencing appointment of an Executor.

Letters of Guardianship - A certificate issued by the probate court that certifies the named person is the court-appointed guardian for a particular person known as a ward or guardian for the ward's estate.

Muniment of Title - meaning “evidence of ownership.”  A muniment of title does not actually pass ownership such as to transfer ownership of land, but it may be used in certain instances as documentary evidence that the person named in the muniment is entitled to be treated as owner.  This is a process sometimes used to file a Will in the Deed records as evidence of the ownership in land without administering an estate.

Per capita - literally “by the head,” referring to a system of determining the portion of an estate that a particular beneficiary will receive by counting the total number of individuals and dividing by that number so that every person gets an equal share regardless of their relationship to the decedent, share and share alike.   Contrast to “per stirpes.”

Per stirpes - literally “by the stem or root,” referring to a system of determining the portion of an estate that a particular beneficiary will receive by first determining the level of relationship of the beneficiary, and then if a group has derived the right to take a portion of an estate due to the death of a predecessor member, then only the portion that the original deceased member would have taken is divided equally among the derivative recipients.  For example, grandchildren will divide only the portion that their parent would have taken if the parent had survived the decedent.  Contrast to “per capita.”

Personal Property - property that is not real estate.  In other words, it could be cash, stocks, jewelry, electronics, or any other property except land and things attached to the land.

Power of Attorney - The document that appoints an agent to act on another living person's behalf and for that person's benefit. The power may be general or limited. There are powers of attorney to enable an agent to make medical decisions for another person, and other powers of attorney to enable an agent to make financial decisions.  The power is automatically revoked upon the death of  the principal (the person who gave the agent the power). 

Probate - The process of court approval for managing a person's estate, whether the person is living (guardianship) or died with a Will (testate) or died without a Will (intestate).  There are special courts designated to handle probate matters (probate court). A Will may be “admitted to probate” meaning that the court has approved the Will as a valid legal document.

Real Property - Land or real estate, including things attached to the land, such as a fence or building.

Rule Against Perpetuities - A common law principle used in connection with a trust or instrument which transfers title to property at a later time.  The rule states that the conveyance is void if the title does not mandatorily vest within 21 years, plus a gestational period, after the death of a person existing at the time the interest was created.  The rule has been modified in some cases by statute and has many interpretations.

Small Estate Affidavit - A special procedure in Texas wherein under very limited circumstances an intestate estate worth less than $50,000 may bypass normal intestacy requirements, but there are several statutory requisites and the Court must approve the affidavit.  The process can only be used where no administration of the estate is needed since no administrator will be appointed in this process, and the estate cannot own real estate other than the decedent's homestead. The process is only for decedent's estates when there is no Will.  

Testator / Testatrix - A person who has made a Will.  Testator may be male or a generic person; Testatrix refers specifically to a female person who has made a Will.

Testamentary - pertaining to a Will or testament.  A testament was historically only for passing personal property, while a will was for real estate, but in modern usage a will is used for both real and personal property.

Trust - A right or management of property held by one person for the benefit of another.  A person or institution known as the “trustee” is appointed by the maker and given responsibility to manage the trust property according to the terms of the trust for the benefit of the beneficiary or beneficiaries.

Will - A legal directive, usually a document, which determines what is to happen to a person's estate after they die.  The Will has no effect until after the maker dies and the Court has determined that it complies with state probate law.  It is revocable prior to death of the maker.  The state statutes are strictly interpreted to determine whether the Will is valid.