Glossary of Terms

Abatement - A pro rata reduction among creditors (or Legatees) when the funds available are not sufficient to satisfy the creditors (or the Legatees)

Ad colligenda bona defuncti – a Grant of Administration for the preservation of property made in order to protect the assets during a delay in the application for grant

Ademption – The sale or disposition by the Testator, during his or her lifetime, of the subject matter of a specific legacy

Ad litem – A Grant of Administration for the purpose of an action, in order that the Estate may be represented in the action

Administration – The process of dealing with the Estate of a deceased person. e.g.collecting the assets, paying the debts and taxes, and distributing the balance of the Estate amongst the persons entitled.

Administrator – A person appointed by the court to administer the Estate of an intestate, or of a testator when an executor has not been appointed or the named executor will or cannot act.

Advancement – A payment or a distribution to a beneficiary of a part of his/her share of capital before the time fixed for his/her attainment of an absolute interest in possession.

Aggregation – The adding together of all property (with certain exceptions) which passes or is deemed to pass, on the death of an individual in order to determine the rate of Inheritance Tax

Ambulatory (of a Will) – The quality of revocability at any time before death

Ancillary Probate – A subsidiary Grant of Probate in respect of a Grant of Probate obtained abroad, giving powers of administration to the foreign executor over mobile property in the United Kingdom

Animus revocandi – The full and free intention to revoke a Will

Animus testandi – The full and free intention to make a Will

Annuity - An annuity is a pecuniary legacy payable by instalments

Appropriation – The application of property, e.g. for or towards the satisfaction of a legacy or annuity

Attestation clause – A statement made at the end of the Will above the signatures of the witnesses, which declares that the Will has been duly signed by the testator in the presence of the witnesses, who attest the Will and sign it in the presence of the testator and of each other

Authorised securities – Those securities in which trustees are permitted to invest trust monies by the Trustee Act 1925, or by other statute, and any other securities which are expressly authorised by the Will which created the trust.

Benjamin Orders – In the event of it not being possible to locate a beneficiary after reasonable efforts have been made, the personal representatives of an estate would find themselves unprotected if they were to proceed to distribute the assets. In these circumstances they can apply to the court for a Benjamin Order, permitting them to distribute the estate on the basis of a particular assumption. For example, as in the Benjamin case, the assumption that the beneficiary had predeceased the testator

Bequest – Gift by Will of pure personality, i.e. legacy.

Bona vacantia – Ownerless property that passes to the Crown, or the Duchy of Cornwall or Lancaster

Breach of trust – Any act carried out, in relation to a trust, by a trustee, which he or she is not entitled to do, either by the terms of the trust, or by the rules of equity or by statute, or the omission to do any act that should have been carried out in relation to the trust.

Cassata grant – A supplementary grant of administration made after a grant limited in duration has expired by the effluxion of the time for which it was granted.

Caveat – A notice in writing to the Registrar warning him or her not to issue a Grant of Probate without giving notice to the individual lodging the caveat (the caveator) or his/her solicitor

Cesar of interest – The determination of an interest, which thereon passes to another

Chargeable Lifetime Transfer - A gift into a trust during the settlor`s lifetime is a chargeable lifetime transfer taxed at 50% of the current Inheritance Tax (IHT) rate, if the amount transferred is above the settlor`s unused Nil Rate Band IHT allowance. There are exceptional transfers that are not taxed including for example, transfers to a Disabled Person`s trust or to a Bereaved Minor`s trust. No further IHT is payable if the settlor lives for a further seven years.

Chattels – Personal property, chattels personal are movable things and chattels real are leasehold interest in land

Chose in action – Property consisting of a right to sue in the courts to enforce a claim

Chose in possession – Property consisting of rights over things actually in possession

Citation – A notice issued by an executor applying for probate in solemn form calling upon every person who could possibly benefit from the invalidation of the Will, to appear and show cause, if any exist, why probate should not be granted

Codicil – A document executed by a testator subsequent to a Will and or referring to the Will with the object of adding to, cancelling or altering, the provisions of the Will

Commorientes – Persons who die together – at the same time

Constructive trust – A trust imposed by equity to protect the interests of the beneficiaries when a trustee or some other person in a fiduciary relationship gains an advantage through his position

Contingent legacy – A legacy that transfers no interest at all unless a specified but uncertain event happens

Contingent Will – A Will which is to come into operation only if a specified but uncertain event happens

Cum div – A quotation relating to stocks or shares, indicating that the price includes all dividends or interest accrued to date.

Cum testament annexe – A grant of administration, with the Will attached, which is made where the testator does not nominate an executor in his Will, or when the executor nominated will not or cannot obtain a Grant of Probate

Cumulative legacy – A legacy, which is additional to one, previously awarded to the same legatee

Cy-pres – Name given to the doctrine relating to charities whereby effect is given as nearly as may be to an intention of a donor or testator which cannot be carried out literally

De bones non-administrates – A grant of administration over the property not yet administered.

Deed of Variation - if all of the original beneficiaries agree, an inheritance under a Will or under an intestacy can be changed after death, for up to two years.

Deemed Domicile - domiciled in the UK at the time of a transfer if they were domiciled in the UK within three years of the transfer, or they were resident in the UK in at least 17 of the last 20 years.

Demonstrative legacy – A pecuniary legacy paid out of a specific fund

Dependant relative revocation – The ineffective revocation of a Will under a misapprehension as to the effect of the revocation or destruction

Devastavit – A breach of trust involving a loss to the Estate

Devise – A gift by Will of real or leasehold property

Devisee – The person entitled to the devise

Devolution– The passing of property by process of law

Domicile - generally, a person`s domicile is where they have their fixed and permanent home and to which, when they are absent, they always have the intention of returning.

Domicile of choice - where a person has left their country of domicile to live in another country with the intention of settling permanently in the new country.

Domicile of dependency - under the age of 16 a child has the same domicile as the person on whom they are legally dependent. This is called a domicile of dependency.

Domicile of origin - this is acquired by a child at birth and is usually the domicile of the child`s father at that time. It need not be the country in which the child is born

Donatio mortis causa – A gift of pure personalty made by a person who is expecting to die, on the understanding that if the death does not occur, the gift is void

Double probate – Where some of several executors to a Will do not prove, they may obtain a Grant of Probate later, such a grant being termed a double probate

Durante absentia – A grant of administration made during the temporary insanity of the sole personal representative

Durante minore aetate – a grant of administration during the minority of the sole legal personal representative

En ventre sa mere – A French expression for a `A child in the womb`. The expression is used in Wills were the testator includes a child that is conceived, but not yet born, as a beneficiary

Equitable apportionment – A rule of equity deemed to carry out the deemed intention of the testator in order to give effect to and protect the respective rights of the life tenant and the remainderman

Estate – A term meaning the property of the deceased person to which he/she is beneficially entitled

Excepted estates – Certain small non-complicated estates in respect of which no formal Inland Revenue account need be submitted for IHT purposes

Ex div – a quotation in respect of stocks and shares, indicating that the price does not include any dividend or interest accrued to date

Executed trust – A trust in which the settlor has given detailed provisions of the trusts created by the instrument

Executor – A person appointed by a Will to administer the Estate of a deceased person

Executor according to the tenor – A person nominated by implication in a Will to act as executor, e.g. where a person is requested to perform acts which are normally performed by an executor

Executor de son tort – A person who interferes with the property of a deceased person by performing duties, which are normally those of a personal representative

Executor`s assent – Any act, express or implied, on the part of an executor, which shows his/her intention to part with his/her interest in the legacy or devise in favour of the legatee or devisee.

Executor`s oath – An affidavit sworn by an executor, declaring among other things, that he/she believes the Will to be the true Will of the deceased and that he/she will carry out all the duties of administration

Executor trust – A trust, which the settlor has not given detailed provisions of the trust but has left it to the trustees or beneficiaries or the court to interpret his/her broad intentions into detail

General legacy – A legacy, which cannot be identified specifically by the personal representative e.g. a gift of £200 or a picture (where the testator does not refer to any particular picture)

Gift inter vivos – An unconditional gift of property made prior to death

Grant save and except – A Grant of Probate entitling the executor to administer that part of an Estate not reserved for a second executor to administer

Grant caeterorum – A grant of administration or probate giving powers of administration over the rest of the Estate not covered by other grants

Holograph Will – A Will entirely in the handwriting of the testator

Immediately chargeable transfer (ICT) - before 22 March 2006, there was an immediate claim for inheritance tax on gifts into discretionary trusts or to companies. For gifts made on or after 22 March 2006, an immediately chargeable transfer is one made to the trustees of a relevant property trust or to a company. Additional tax may be payable if the donor dies within seven years of the gift

Immediate post-death interest (IPDI) - the Finance Act 2006 defined an immediate post-death interest (IPDI) as one where a person has an interest in possession in settled property and all the following apply

· the settlement was effected by Will or under an intestacy

· the beneficiary became beneficially entitled to the interest in possession on the death of the testator or intestate.

Implied Trust – A trust implied from the presumed, but unexpressed, intention of a party

In loco parentis – In the position of a parent

Intestate – A person who has died without making a Will

Issue – All lineal descendants of a person

Joint tenancy – Concurrent interest in property where the same interest is held under the same instrument by two or more persons in the same right, with the right of survivorship incidental. Joint tenants have one estate in the whole, not in shares (see Tenancy in Common)

Lapse - The failure of a legacy or devise owing to the death of the legatee or devisee before the testator, except where the deceased legatee or devisee was a descendant of the testator and left issue of his/her own which survived the testator

Lasting Power of Attorney - A document made and signed by the Donor (the person making the LPA) empowering his/her attorneys to take charge of the Donor`s welfare, property and affairs, in the event of the Donor becoming incapacitated.

Latent ambiguity – Hidden double meaning

Legacy – A gift of pure personal property by Will - for the different types of legacy see Annuity, Demonstrative Legacy, General Legacy, Pecuniary Legacy, Residuary Legacy and Specific Legacy

Legal Personal Representative – The executor or administrator of the Estate of a deceased person in whom is vested the administration and distribution of the Estate

Living Will – (or advance directive or decision) A person can direct that in the event of a loss of mental capacity, they do not wish to be given medical treatment for any life threatening illness. Such a statement should not be incorporated into a Will but should be kept separately.

Maintenance – The application by the trustees, for the benefit of the beneficiary, of the whole or part of the income from the property held in trust

Marshalling the assets – Arranging the assets in the proper order of application where the Estate is solvent but insufficient to meet all the legacies and devises

Mutual Wills – Wills conferring reciprocal benefits, made by two or more persons who have agreed that the Wills are not to be revoked

Noncupative Will – A Will made orally before witnesses

Partial Intestate – A person who has died without wholly disposing of his/her property by Will

Patent ambiguity – Obvious or unhidden double meaning

Pecuniary legacy - A gift of money in a Will

Pendente lite – A grant of administration made while an action is pending regarding the validity of a Will

Per Capita – By heads, i.e. according to the number of beneficiaries

Perpetuity – A limitation that must vest after the utmost period allowed by law

Personal Chattels – All household furniture and personal effects, except goods used for business purposes, money, bank balances or securities for money

Personalty – All movable property, i.e. furniture, trade stocks, money, private business and share in partnership and securities and leasehold interests: all property except real property.

Per Stirpes – By families, i.e. by representation of a dead claimant by his/her issue taking his/her share

Portion – a gift made by a father or person in loco parentis to one of his children, or to a person to whom he has placed himself in loco parentis with the intention of discharging the moral obligation to provide for the child

Potentially exempt transfer – (P.E.T.) - A lifetime transfer of value made by an individual, which would otherwise be chargeable for Inheritance Tax - a P.E.T. becomes fully exempt if the transferor survives seven years after the transfer.

Post Death Variations - An individual can disclaim a gift under a Will, the gift then reverting back into the residuary estate. To be effective the variation must be entered into within 2 years of the deceased`s death, there must be no consideration, and the original beneficiary must be over 18 years of age and have mental capacity. Under the Variation of a Trust Act 1958, the court has the power to consent to on a minor`s behalf, but only where the proposed variation is for the benefit of the original beneficiary. Where a benefit under a discretionary trust requires variation, it is the trustees acting within the terms of the Will who can consent to the variation.

Power of appointment – An authority given to some person (called the donee of the power) to nominate the person who shall take certain specified property belonging to the person creating the power (called the donor of power)

Preference - The right of a personal representative (except a creditor/administrator) to pay any one creditor of a particular class before another of the same class

Probate – The legal recognition of the validity of a Will

Proprietary Estoppel – Under the doctrine of Proprietary Estoppel, the courts can grant a discretionary remedy in circumstances where an owner of land has implicitly or explicitly led another to act detrimentally in the belief that rights in or over the land would be acquired. This can include the revocation of a Will by the courts.

Protector - The role of a protector of a trust is to oversee the actions of the Trustees and provide them with guidance as to the wishes of the settlor and/or beneficiaries. The protector does not have the same powers as the trustees and is generally appointed where the settlor is concerned that the trustees may not exercise their powers in a satisfactory manner or where there may a need for a moderator. The trust deed must specify what powers the protector will have as there are no default statutory powers. Realty – All interests in land other than leasehold interests

Relevant Property Regime – The 2006 Finance Act extended the extent to which gifts into discretionary trusts are subject to initial Inheritance tax (IHT) and subsequent 10 year IHT charges, as well as an ultimate exit charge for funds withdrawn from the trust. Gifts during lifetime are charged at 50% of the current IHT rate, which is 40%. Exceptions to this charge include, as previously, gifts to charities, to a disabled person`s trust, a life interest to a surviving spouse, as well as gifts that attract 100% relief such as gifts out of normal income or which attract business or agricultural property relief. A further new exception now includes gifts to bereaved minors. Also of course gifts into trust below the NRB do not attract IHT.

Remainderman – The person who takes the capital of an Estate on the death of the life tenant

Residuary devisee – The person who takes the remainder of the real property after the payment of all debts and legacies charged on such property, and after the satisfaction of all gifts of such property

Residuary legacy - A residuary gift in a Will passes the property of the deceased not otherwise disposed of.

Residuary legatee – The person who takes the remainder of the personal property after the payment of all debts and legacies payable thereout.

Resulting trust – trust of which the beneficial interest results or returns to the creator of the trust

Retainer – The right of an executor to retain a debt due to himself in preference to other creditors of equal degree

Reversionary interest – Any right to the ownership of the property at a future date

Satisfaction – The gift of something in extinguishment of a prior claim

Settlement – An arrangement by which property is held on trust, generally for several beneficiaries in succession, some of them unborn at the time of making the settlement

Severance of joint tenancy – The conversion of an equitable joint tenancy in land into a tenancy in common.

Specific legacy – A gift of something identified by the testator in his/her Will

Statutory Trusts – The trust upon which, under section 47, Administration of Estates Act 1925, the residuary Estate of an intestate is held for the benefit of the class of relatives entitled thereto, until they attain absolutely vested interest.

Substitutional legacy – A gift of personalty made in lieu of a previous gift, where the testator indicated that it was not his/her intention that the legatee should take both gifts

Successor – The person entitled to the beneficial interest passing under a devise of freehold or leasehold property

Sui juris – Of full legal capacity

Tenancy in Common – Concurrent interests in property where the tenants have several distinct, though undivided, interests in respective parts of the property (see joint tenancy)

Ten-yearly charge - an inheritance tax charge which arises on a relevant property trust on the tenth anniversary of the setting up of the trust and each subsequent ten-year anniversary

Testamentary expenses – The expenses incurred in obtaining probate or letters of administration, paying Inheritance Tax and debts, and realising assets

Testator – A person who makes a Will

Trust – A trust is an arrangement by which property is handed over to one or more persons called trustees, or validly declared by the owner to be held by himself as trustee, to be applied for the benefit of some other person, or persons, called beneficiaries, of whom any trustee may be one

Trust Corporation – The Public Trustee or any corporation either appointed by the court in any particular case to be a trustee or entitled to act as a custodian trustee under the Public Trustee Rules 1912

Trustee – The person who holds property on behalf of another person and to whom is committed the administration of the trust

Trustee securities – Those securities in which trustees are permitted to invest trust moneys by virtue of the provisions of the Trustee Act 1925 (as amended by the Trustee Investment Act 1961)

Vested Legacy – A legacy which transfers an immediate title to the legatee, even though the payment is deferred to some future date

Warning – A notice entered by an executor at the Principle Probate Registry and served upon a caveator, calling upon him/her to enter an appearance within six days to show cause why probate should not be granted

Will – Any valid declaration of a person`s intentions as to property, which he or she can dispose of after his or her death, which he or she requires to be performed after his/her death. (for a more comprehensive definition see our page `What is a Will?`)