Probate spelled out with lettered tiles

Probate Terms You Should Know

Law Offices of David W. Wilcox May 16, 2022

For an average person, going through probate after the death of a family member can seem like an overwhelming experience. First of all, the person has to cope with the loss of a loved one. Second of all, they must deal with numerous probate terms that may be too confusing.

Understandably, many people who go through probate proceedings do not have much knowledge about probate and the terms used during the process. Whether you are a decedent’s heir or were appointed as a trustee or personal representative (executor of an estate), it is essential to understand basic probate terms.

As an experienced estate planning attorney serving clients in Bradenton, Florida, David W. Wilcox understands that probate can be complex. That is why Attorney Wilcox is dedicated to guiding clients through difficult times and helping them understand the probate process and what is involved at every stage.

Basic Probate Terms to Know

There are many terms that people involved in the probate process need to understand to make their (and everyone else’s) lives easier. Below are some of the basic probate terms that you may encounter when administering a deceased person’s estate:

  • Probate. The term “probate” refers to a court-supervised legal proceeding that takes place after an individual’s death. The primary purpose of the process is to settle the deceased person’s estate and distribute their property to the intended beneficiaries.

  • Probate tax. Many jurisdictions across the United States impose this type of tax on property passing from one person to another under the terms of a last will and testament or in accordance with the laws of intestate succession.

  • Intestate succession. When a person dies without a last will and testament or their will is deemed invalid, their property is distributed to the heirs in accordance with the laws of intestate succession. Intestate succession laws vary greatly from one state to another. Generally, the term “intestate succession” is used to describe the order in which heirs inherit from the decedent’s estate.

  • Estate. The word “estate” refers to any real and personal property the decedent had before their death.

  • Beneficiary. A beneficiary is an individual named in the will, insurance policy, or trust who is set to receive the decedent’s property or money.

  • Personal representative. The personal representative of the deceased person’s estate is appointed by the decedent in their will to administer and oversee the distribution of the estate during the probate process. The term is used interchangeably with the term “executor.”

  • Administrator. When a decedent did not leave behind a will or did not appoint a person to administer the distribution of their estate in the will, the probate court will have the authority to appoint the “administrator” to serve as the executor of the estate.

  • Guardianship. The term “guardianship” is used to describe the legal relationship between a guardian and the person in need of a guardian (the ward). The guardian’s duty is to manage the personal and financial affairs of their ward.

  • Descendants. A descendant is any person who is related to another person by blood and is in line of succession.

  • Testator (grantor). A person who creates a last will and testament is called the testator or grantor. The testator provides information to the court and their family about what they would want to happen to their property after their passing.

  • Power of attorney (POA). The term refers to a legally binding document in which the individual who creates the document gives another person (their attorney-in-fact) the power to act on their behalf and manage their affairs in the event of their incapacity.

  • Capacity. In estate planning, the word “capacity” refers to the individual’s ability to understand the consequences of their actions and the implications of the documents they create.

  • Incapacity. Incapacity means that a person lacks the physical or mental ability to manage their affairs on their own.

  • Revocable trust. This legal document places the trustor’s assets into a trust and distributes them to the named beneficiaries. A revocable trust, which can be altered or revoked by the trustor, can be used to avoid probate.

  • Irrevocable trust. As the name implies, an irrevocable trust cannot be altered or revoked by the trustor.

  • Trustee. The term “trustee” refers to individuals or organizations appointed by the trustor to hold and manage the assets and/or money in a trust for the benefit of the trust’s beneficiaries.  

The list of probate terms you should know is by no means exhaustive. There are dozens of other confusing terms that you may encounter during the probate process.

Let the Law Offices of David W. Wilcox Help

If you wish to gain a better understanding of the probate process, seek the legal counsel of a skilled estate planning attorney at the Law Offices of David W. Wilcox. With decades of legal experience, Attorney Wilcox can help you navigate the probate process to efficiently settle an estate in compliance with applicable Florida laws. Set up a case evaluation by reaching out to his office in Bradenton. Attorney Wilcox also serves clients in Matinee County and Sarasota County.