Ortego & Urech’s Legal Terms Dictionary
Important Legal Terms Explained & Defined
PROBATE TERMS
Administrator – Person who is either selected by the Decedent in his or her Will, is appointed by the Court and/or agreed upon by the descendants of the Decedent to take care of the business of wrapping up the affairs of the Decedent. An Executor is a type of administrator.
Administrator’s Deed- This is a deed signed by an Administrator appointed by the Court in a probate proceeding whereby the Administrator transfers real property owned by a Decedent to the Decedent’s heirs or beneficiaries.
Administration - The part of the probate process involving taking care of the business of the deceased. An administration can be independent requiring very little interaction with the Court after appointment of the executor or administrator or dependent requiring extensive court supervision and oversight.
Affidavit of Heirship – Alternative to probate when there is no Will and the Decedent has no debts to pay or funds that need to be collected from others.
Applicant- The legal term for a person who submits an application in a probate case asking the Court to do something. There are many different types of applications; however, in a probate case, commonly the Applicant is the person submitting an application to the Court asking for the Court to probate a will or probate an intestate estate and appoint a personal representative.
Beneficiary- A person who benefits from something, such as a will, trust, life insurance policy, IRA or 401K account.
Claimant - A person or entity that has a legal claim. Although there are many different types of claimants, in the probate context claimants are often a creditor or a plaintiff in a personal injury or wrongful death suit.
Creditor - A Person or institution who is owed money. Examples include a mortgage holder, credit card company, or even a relative who gave the deceased person a loan. Sometimes the estate of a deceased person is a creditor.
Decedent – Person who has passed away.
Dependent Administration – See Administration above.
Estate of the Decedent – All property, rights, and interests belonging to a decedent.
Executor – Person selected by the Decedent in their Will to administer their estate after their death.
Executor’s Deed- This is a deed signed by an Executor appointed by the Court in a probate proceeding whereby the Administrator transfers real property owned by a Decedent to the Decedent’s heirs or beneficiaries.
Fiduciary- A person who acts on behalf of another person or people in the best interest of the person upon whose behalf they are acting. A fiduciary has legal responsibilities and duties and can be held legally responsible for a breach of those duties. Examples include an Administrator, Executor, Agent under a power of attorney, and Trustee.
Holographic Will - A will written entirely by hand by the Testator. The person writing the will has to show an intent to make a gift at their death (testamentary intent) and the holographic will must be dated and signed by the person writing the will. If it meets the Texas statutory requirements for a holographic will, a handwritten will can be admitted to probate.
Independent Administration- See Administration above.
Intestate - A term that means a person has died without a Will.
Letters Testamentary – Document prepared by the Probate Court clerks that gives the Executor authority to conduct business on behalf of the Decedent’s Estate.
Letters of Administration - Document prepared by the Probate Court clerks that gives the Executor authority to conduct business on behalf of the Decedent’s Estate.
Personal Representative- Generic term for the person representing a Decedent’s estate. Executors and administrators are types of personal representatives.
Probate - The official legal process used after a person dies to manage and distribute a person’s property after a person dies. Management of that property usually involves transferring that person’s ownership in property and handling creditors’ claims among other duties.
Probate Assets and Nonprobate Assets- The property, rights, or interests that a person owns. Those assets are categorized as probate or nonprobate. Nonprobate assets pass directly to a named beneficiary upon the death of a person. Examples of nonprobate assets include life insurance policies, IRA or 401K accounts with named beneficiaries, and checking accounts with named payable on death beneficiaries. Probate assets are any assets that do not pass to named beneficiaries who take immediately upon the owner’s death.
Probate as Muniment of Title is a type of probate proceeding that can be used in some situations when the deceased person left a Will but did not leave an estate that needs an executor or administrator to be appointed for any reason. An experienced probate attorney should be consulted to determine if this is the right fit for your particular situation.
Small Estate Affidavit – Alternative to probate when the Decedent’s Estate is valued $75,000.00 or less and the Decedent had no debts.
Testate – A term that means a person died leaving a Will.
Testator - The person making a Will, also called a Testament. If you write a Will, you are the Testator of that Will.
Statute of Limitations - A time period limiting the right of a person or entity to bring a particular kind of legal action. In the probate context, this usually means the time limit for a claimant to bring a legal action against the deceased person’s estate. If you are an executor or an administrator, you will consult your probate attorney before paying a claimant because there may be a good reason to deny that claim. One of those reasons may be that the statute of limitations has run on that particular claim.
ESTATE PLANNING TERMS
Advance Directive (also called a Living Will)- Document expressing if the drafter wants to be on life support if they are not expected to recover the ability to eat or breathe on their own.
Beneficiary- A person who benefits from something, such as a will, trust, life insurance policy, IRA or 401K account.
Business Succession Planning-
Declaration of Guardian in Advance of Need- Designates who will manage financial affairs and make decisions about care and welfare if the drafter becomes incapacitated. This is a backup/failsafe to the medical and financial powers of attorney in case there are unforeseen circumstances.
Declaration of Guardian for Minor Children- Designates who will manage your child’s assets if the parents are not able to do so. The child’s surviving parent will raise the child alone if something happens; however, if the one or both parents are incapacitated, declarations of guardian designate who will raise a child if neither parent is available to do so.
Designation of Remains- Document in which a person lists their wishes regarding a funeral or cremation and may decide who should have the right to possess their remains and carry out their wishes.
Fiduciary- A person or entity (i.e. Trust Company) who is named to be an Administrator, Executor, Trustee, Agent under a Power of Attorney and owes duties of good faith and fair dealing to the person upon whose behalf they are acting.
Grantor of a trust – A person who sets up a Trust to hold all or some of his assets.
Irrevocable Trust- A trust that cannot be canceled after the document has been signed.
LadyBird Deed (also called Enhanced Life Estate Deed)- Deed in which grantor retains certain rights such as the right to live in a property and designate the property as a homestead and the right to sell the property while conveying the ownership rights to someone else. This is a technique for converting a home to a nonprobate asset and can be part of a comprehensive Medicaid planning strategy.
Last Will and Testament- Document in which a person designates who their property will pass to after their death and who will be responsible for paying creditors and distributing property to heirs.
Medical Power of Attorney- Document designating an agent to make healthcare decisions if the drafter cannot do so.
Probate Assets and Nonprobate Assets- The property, rights, or interests that a person owns. Those assets are categorized as probate or nonprobate. Nonprobate assets pass directly to a named beneficiary upon the death of a person. Examples of nonprobate assets include life insurance policies, IRA or 401K accounts with named beneficiaries, and checking accounts with named payable on death beneficiaries. Probate assets are any assets that do not pass to named beneficiaries who take immediately upon the owner’s death.
Revocable Living Trust – A trust that allows the grantor to maintain control over the assets held by the trust during the grantor’s life time.
Self-proven will – Will that has been signed and witnessed so that upon probate witness will be necessary to testify as to the signature and competency of the testator.
Statutory Durable Power of Attorney (commonly referred to as Financial Power of Attorney)- Document designating an agent to handle financial affairs if the drafter is not able to do so on their own.
Trust – An entity created by a document to hold the assets of the grantor which allows the grantor to designate who will benefit from the assets during and after the grantor’s life time.
Testamentary Trust – Trust that is defined inside a will that is created upon the death of the testator.
Trustee – A person or entity who maintains a trust for the benefit of the beneficiaries of the trust.
Transfer on Death Deed – A deed prepared during the life time of a grantor that automatically transfers to a designated person or entity upon the death of the grantor. This method can be used to convert real property into a nonprobate asset.
REAL ESTATE TERMS
Executor’s Deed- Deed prepared by the Administrator of an estate transferring property from the estate of the decedent to the named or designated beneficiary of the estate of the deceased.
Grantee of a Deed- Person or entity to whom the title to a property is transferred.
Grantor of a Deed – Property owner who is transferring ownership to another person or entity.
General Warranty Deed – Document that transfers a property from the grantor to another person or entity giving the new owner all rights to the property allowed under Texas property laws guaranteeing that there are not any undisclosed clouds on the title.
Quitclaim Deed – A document that disclaims all interest to a property. It cannot be used to transfer ownership to another person or entity.
Special Warranty Deed – Document that transfers all rights to a property from the grantor to another that guarantees that the current owner is only guaranteeing that he has not done anything to cloud the title to the property but does not guarantee that others before him have not caused a cloud on the title.
Record Title Owner – The person who is recorded in the real property records as the owner of a certain property.
Affidavit of Heirship – A document used to clear title when the record title owner has passed away and his or her estate was not probated and there is no record of who the new owners should be according to Texas law.
Mineral Deed – A deed that prepared to define who owns the minerals under the surface of a parcel of land.
Royalty Deed – A deed that defines who will be paid and in what percentages when minerals are mined from the subsurface of a parcel of land.
Trustee Deed- A deed prepared by the person who administers a Trust (i.e. the Trustee) transferring ownership of a Trust owned property to another person or entity.
