Like many areas of law, estate planning incorporates many terms that have very specific meanings.  While the list below is far from being complete, it contains many of the more common terms you may encounter in dealing with wills or trusts.

Attorney Ad Litem

An attorney who is appointed by a court to represent and advocate on behalf of a proposed ward, an incapacitated person, or an unborn person in a guardianship proceeding.

 

Community Property

All property other than separate property which is acquired by either spouse during marriage.

 

Devise

When used as a noun, a testamentary disposition of real or personal property, or of both.  When used as a verb, “devise” means to dispose of real or personal property, or of both, by will.

 

Directive to Physician

This is more commonly known as a “living will”.  A “competent” individual may execute a written directive regarding the use of “life-sustaining procedures” in the event the individual has a terminable or irreversible condition certified by two (2) physicians.

 

Distributee

A person entitled to the estate of a decedent under a lawful will, or under the statutes of descent and distribution.

 

Durable Power of Attorney

A document by which an individual, known as the principal, designates another to act as his or her agent in financial matters.  If properly drafted, a durable power of attorney will survive the principal’s incapacity and, thus, the agent may continue to act on behalf of an incapacitated principal.

 

Estate

Real and personal property of a decedent, both as such property originally existed and as from time to time changed in form by sale, reinvestment, or otherwise, and as augmented by any accretions and additions.

 

Exempt Property

Property of a decedent’s estate which is exempt from execution or forced sale by the Constitution or laws of this State, and to the allowance in lieu thereof.

 

Guardian

A person who is appointed guardian under Section 693 of the Probate Code, or a temporary or successor guardian.  Except as expressly provided otherwise, “guardian” includes the guardian of the estate and the guardian of the person of an incapacitated person.

 

Guardian Ad Litem

A person who is appointed by a court to represent the best interests of an incapacitated person in a guardianship proceeding.

 

Guardianship Program

A local, county, or regional program that provides guardianship and related services to an incapacitated person or other person who needs assistance in making decisions concerning the person’s own welfare or financial affairs.

 

Heirs

Those persons, including the surviving spouse, who are entitled under the statutes of descent and distribution to the estate of a decedent who dies intestate.

 

Incapacitated Person

A.  A minor;

B.  An adult individual who, because of a physical or mental condition, is substantially unable to provide food, clothing, or shelter for himself or herself, to care for the individual’s own physical health, or to manage the individual’s own financial affairs; or

C.  A person who must have a guardian appointed to receive funds due the person from any governmental source.

 

Independent Executor

The personal representative of an estate under independent administration as provided in Section 145 of the Probate Code.  The term “independent executor” includes the term “independent administrator”.

 

Interested Persons

An heir, devisee, spouse, creditor, or any other person having a property right in, or claim against, the estate being administered or a person interested in the welfare of an incapacitated person, including a minor.

 

Medical Power of Attorney

Similar to a durable power of attorney, a Medical Power of Attorney for health care is a document by which an individual may delegate to an agent the authority to make health care decisions.  The agent under a durable power of attorney for health care may make any health care decision on the principal’s behalf that the principal could have made but for the principal’s lack of capacity to make such decision.

 

Minor

A person who is younger than 18 years of age and who has never been married or who has not had the person’s disabilities of minority removed for general purposes.

 

Next of Kin

Includes an adopted child, the descendants of an adopted child, and the adoptive parent of an adopted child.

 

Parent

The mother of a child, a man presumed to be the biological father of a child, a man who has been adjudicated to be the biological father of a child by a court of competent jurisdiction, or an adoptive mother or father of a child, but does not include a parent as to whom the parent-child relationship has been terminated.

 

Personal Property

Generally an interest in goods and money.

 

Real Property

Estates and interests in lands.

 

Separate Property

Property owned before marriage or received during marriage by gift or inheritance.  Damages awarded during marriage in settlement of certain personal injury lawsuits except damages representing loss of earning capacity.

 

Settlor

A person who creates a trust.

 

Temporary Guardianships

It generally takes a minimum of two (2) weeks from the time a permanent guardianship proceeding is instituted until a guardian may be appointed.  In certain circumstances, it may be necessary to seek the immediate appointment of a guardian via a “temporary” or emergency guardianship.

 

Trust

A trust is simply one person’s promise to hold property for the benefit of another.  A trust can go into effect during your life (an inter vivos trust) or at your death through your will (a testamentary trust).  An inter vivos trust can be revocable (you can change your mind and shut it down or change its terms) or it may be irrevocable (make sure you have it right because you can’t change it).

 

Will

Includes codicils; it also includes a testamentary instrument which merely appoints an executor or guardian, directs how property may not be disposed of, or revokes another will.