Probate – Glossary of Terms
One of the most common questions clients ask during probate is, “what do all these terms mean?” Probate is one of the oldest areas of the law and many of the terms used stem from Latin or from the 1400 and 1500s. Probate is one of the few areas of the law where the terms used commonly by the court and the attorneys are not regularly used in common communication.
The word “probate” itself was first used in the 1400s and was (and still is) defined as “the official proving of a will.”
At Kehoe Moneyhun Law, we make the probate process streamlined and easy to understand. While the probate laws in Oregon and Washington are unique, the terms used in probate are the same in most states. To help you understand the terms you will routinely hear or read during probate, we have defined the most common probate terms in easy to understand language below:
Who are the parties involved? In probate, the following terms apply to the individuals involved:
“Decedent” – the decedent is the person who died.
“Descendant” – a descendant is someone who is born after you and also related to you by birth or adoption. For example, a child is a descendant of his or her parents and a grandchild is a descendant of his or her parents and grandparents. Descendants do not include other family members such as parents, grandparents, aunts and uncles, or siblings. Sometimes a descendant is referred to as “issue.”
“Devisee” – a devisee is a person who has been designated in a last will and testament to receive a gift.
“Beneficiary” – a beneficiary is a person who benefits, or receives a gift or a benefit from, a person’s an estate. A “devisee” is a beneficiary of an estate;, similarly, an “heir” can be a beneficiary of an estate. When a person dies without a valid last will and testament, that person’s descendants will be the beneficiaries of his or her estate. When a person dies with a valid last will and testament, the people named in his or her will (the devisees) are the beneficiaries of the estate.
“Distributee” – a “distributee” is a person who receives property from a decedent when the decedent dies without a valid last will and testament (this is called dying intestate). For example, if a father dies without a last will and testament, then his child with be a distributee of his estate. Sometimes a distributee is also referred to as an “heir.”
“Heir” – an heir is a person’s legal family members and sometimes are also referred to as “next of kin.” An heir is determined by state law and applies only when a person dies without a last will and testament. If a person is married, his or her, spouse is their heir. If a person is not married, that person’s heirs are his or her children. If a person is not married and does not have descendants (children and/or grandchildren), then that person’s heirs are his or her parents.
“Issue” – issue is a legal term that also means descendants.
“Interested Person or Interested Party” – is any person who has an interest in the estate. Interested parties include everyone who has a right to receive something from the estate, either as a devisee or as a beneficiary. An interested party also includes creditors.
“Personal Representative” – in Oregon and Washington the term “personal representative” refers to the person appointed to administer a probate. In some states the personal representative is referred to as the “executor,” or the “administrator.”
What are the terms relating to estate administration? In probate the following are commonly used terms during the court process:
“Abate” – the phrase abate refers to the process which occurs when there are insufficient assets in an estate to pay all claims, expenses, and gifts in full, the result of which is that the gifts to individuals will be proportionally decreased.
“Administration” – means any proceeding relating to the estate of a decedent, whether the decedent died testate, intestate, or partially intestate.
“Advanced” – means a gift by a decedent to an individual with the intent that the gift satisfy in whole or in part the individual’s share of an estate.
“Assets” – are all assets subject to probate administration and include real property, personal property, and intangible property.
“Bequest” – a bequest is the legal term meaning to make a gift in a will. Traditionally, a bequest is the gift of personal property, such as jewelry, in a will.
“Claim” – a claim against the estate includes all liabilities of a decedent. Claims will include outstanding bills, possible lawsuits, or money advanced by an individual on behalf of the decedent or the estate.
“Codicil” – a codicil is a legal amendment to a will. It will have all of the same formalities as a will and will be read in conjunction with the prior document. A codicil is used to modify only certain provisions of a will and does not revoke a prior will.
“Devise” – a devise is the legal term meaning to make a gift in a will. A devise historically refers to giving a gift of real estate, such as a residence, in a will.
General Devise – a general devise is a broad gift that includes everything not otherwise gifted.
Specific Devise – a specific devise refers only to the item gifted.
In the phrase “I leave my painting of a rose to Charles, and the remainder of my personal property Stephanie”; the gift to Charles is a specific devise and the remaining gift to Stephanie is a general devise.
“Estate” – includes all assets that belonged to the decedent. Such items include real property (land), personal property, bank accounts and investments, business interests, and legal rights that may be pending.
“Intestate” – means a person who dies without a will. If a person dies intestate, then state law will determine who will receive that person’s assets.
“Intestate succession” – refers to the line of inheritance when an individual dies without a will.
“Last will and testament or will” – a last will and testament is a valid legal document that disposes a person’s assets on death. In order to be valid the will must comply with the formalities outlined by statute. Generally, this includes a signature signed before witnesses. Many states then require the witnesses to state under oath that they witnessed the signing of the will.
“Property” – includes both real and personal property.
“Personal Property” – are items that are movable and includes everything except real property. Personal property includes housewares, vehicles, and collections. Investments and bank accounts are considered a sub-category of personal property known as “intangible personal property.”
“Real Property” – real property refers to land and all legal rights attached to the land, including, building, mineral, farming, and water rights.
“Settlement” – in probate administration the term settlement refers to the process of administering, distributing, and closing a decedent’s estate.
The probate process does not need to be difficult. We at Kehoe Moneyhun Law are here to assist you either as a personal representative administering a loved one’s estate in Oregon or Southwest Washington or as a beneficiary or other interested party who wants to know more about your rights in a probate estate. Reach out at any time by phone at 503-281-0624 or schedule an appointment directly on our website HERE.