Glossary of Will Terminology

Introduction

Wills and estate planning come with their own vocabulary.

Most of these words are technical and rarely encountered in everyday life. A few words are familiar but have different meanings in a legal context.

What follows is a glossary of common terms you may encounter when making, reading, or dealing with a will. We have decided to make the definitions short and to the point rather than detailed and lengthy.

List

will

A legal document made by a person while they are alive that directs who their property will go to upon their death.

testator

The will-maker or person whose will it is.

execution

The act of signing and witnessing a will.

revocation

The cancelling of a will. It is usually done by destroying a will and/or by making a new, replacement will that contains a standard revocation clause.

estate

A deceased person's property.

trust

An arrangement in which property, rather than being held normally by an owner, is held, managed, and administered by one person on behalf of another person for their benefit.

trustee

The person in a trust who does the job of holding, managing, and administering the property.

executor

A person chosen under a deceased person's will to be the trustee of their estate and carry out the directions of the will.

fiduciary

A person who has a legal duty to act in the interests of another person rather than their own interests in relation to a particular matter. Executors and trustees are fiduciaries.

beneficiary

A person chosen under a will to receive a gift of property.

bequest

Traditionally, a gift of personal property in a will. Nowadays just any type of gift.

devise

Traditionally, a gift of real property (land) in a will. Nowadays just any type of gift.

legacy

A cash gift in a will.

residue

The generalized remainder of a deceased person's property outside of any named gifts.

issue

Descendants, generally - i.e. children, grandchildren, great-grandchildren, etc.

per stirpes

by branch of descent, i.e. "[so-and-so gift] to A's issue then alive in equal shares per stirpes" means, where A had two children, B and C, and B is alive and C is not but has left two children, D and E, alive, then B receives as one among two co-branches of descent, while D and E each receive as co-sub-branches of descent off C's entitlement as the other of the two co-branches of descent; here, B - 1/2, D - 1/4, E - 1/4.

per capita

by person, i.e. "[so-and-so gift] to A's issue then alive in equal shares per capita" means, where A had two children, B and C, and B is alive and C is not but has left two children, D and E, alive, then B, D, and E receive, irrespective of branch of descent; here, B - 1/3, D - 1/3, E - 1/3.

probate

The process of filing a deceased person's will with court in order to gain the authority to deal with the deceased person's property and carry out their will.

intestate

A deceased person who left no will.

codicil

A document that updates an existing will and is incorporated into it and read together with it as a bundle. Common in the days where wills were written in ink or by typewriter and could not be reprinted easily. Obsolete in the modern era where wills may be reprinted instantly via computer.

affidavit

A written declaration that is signed under oath.

lapse

The failure of a gift in a will because its intended beneficiary died before the will-maker. Under most laws, where there is no beneficiary or alternate named beneficiary still living, the gift will fall under the residue, or, if it already is a part of the residue, it may be distributed according to the rules of intestacy.

ademption

The failure of a gift of specifically identified property because that property is no longer in the will-maker's estate at their death, i.e. a gift of a particular car generally fails if the will-maker sold that car before dying.

abatement

The ordered reduction of gifts in a will when the estate does not have enough property to pay them all in full.

capacity

The mental wherewithal required to make a will that is accepted as valid. The will-maker must generally understand what they are doing, what they own, and who might reasonably expect to benefit.

undue influence

Improper pressure exerted on a will-maker that overcomes their independent wishes and causes them to make a gift they otherwise would not have.