Glossary of Private Client Legal Terms
A, B, C, D, E, F, G, H, I, J, K, L, M, N, O, P, Q, R, S, T, U, V, W, X, Y, Z
Administrator
In circumstances where a deceased person has died without having made a Will the person entitled to administer the estate is regulated by law. This person is known as an Administrator.
Attorney
An Attorney is a person appointed to manage the affairs of another person. Often Attorneys are seen in the context of a Lasting Power of Attorney arrangement. Often, elderly and vulnerable will appoint an Attorney to manage their financial affairs.
Ademption
Where a person by their Will bequeaths a particular item to a named beneficiary, and between the date of the Will and death of the person making it the item is sold or otherwise disposed of, the gift in the Will fails. This known as ademption.
Beneficiary
A person entitled under a Will or a Trust is known as Beneficiary, that's to say they derive some benefit such as the gift of a legacy under a Will or assets held in Trust by Trustees for their benefit.
Bona Vacantia
This is a Latin term which literally translates to 'ownerless goods'. This situation can arise in the context of the failure to distribute a deceased's person's estate owing to a failure to locate beneficiaries in the Will or any entitled person under an Intestacy (please see Intestacy below)
Codicil
A Codicil is a 'bolt on' to a Will. Typically it will be used to make minor changes to a Will such as an increase in a legacy or change of Executor. Occasionally a Codicil will be used to 'revive' a Will that has, as a matter of law, been revoked due to the testator having married after preparing the Will.
Citation
Where an executor or administrator is without just cause delaying the taking out of a Grant of Probate or Letters of Administration (please see below) any person with an interest in the proceedings can make an application to the Court for an order that the Executor or Administrator proceeds without further delay. This is known as Citation
Caveat
Any person who objects to the issuing of a Grant of Representation can enter a Caveat at the Probate Registry that prevents a Grant being issued. It could be used where a person believes the Will of a deceased person is invalid due to fraud or duress having been exerted on the person making the Will. It is only a temporary injunction and allows time for evidence to be prepared.
Capital Gains Tax
Subject to certain exceptions such as your own property, where an asset increases in value between the date it was purchased or received and the date it was sold or disposed, depending on the level of gain a tax charge may be levied.
Deed of Variation
It is possible to vary the terms of a deceased person's Will as long as it is done within 2 years of death and the person who is disadvantaged by the variation consents. For example an elderly person who is not in need of their legacy can redirect their entitlement to another relative. It is possible to vary the operation of the Intestacy provisions (please see below). The arrangement must be in writing and in the form of a Deed.
Deed of Disclaimer
This is similar to a Deed of Variation except the person disclaiming their inheritance, unlike with a Deed of Variation, does not state who receives the legacy in their place. The disclaimed legacy then passes in accordance with the default provisions of the Will or the Intestacy provisions.
Executor
An Executor is a person appointed in a Will to carry out the administration of a deceased person's estate. This can include everything from arranging the funeral to paying Inheritance Tax, and distributing the estate in accordance with the provisions of the Will.
Executrix
Quite simply an Executrix is the term for a female Executor.
Family Provision
In certain circumstances a person who has not been provided for in a Will or stands to benefit under the rules of Intestacy (please see below) may bring a claim against the estate for reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975
Guardian
Through a Will it is possible to appoint testamentary guardians to look after minor children. In most cases the appointment will only take effect upon the death of both biological parents.
Grant of Probate
This is the authority given to an Executor by the Court to administer the estate in accordance with the deceased person's Will.
Grant of Letters of Administration
This is the authority given to a person or persons by the Court to administer the estate of a deceased person who died without a Will.
Grant of Letters of Administration with Will annexed
This is the authority given to a person or persons by the Court to administer the estate of a deceased person who died leaving a Will but where the named executors predeceased the testator or are unable to act and have appointed representatives to act in their place.
Grant of Representation
This is the general term for all three Grants described above.
Half Blood
Persons are said to be half blood to one another when they are descended from one common parent only (e.g. they share the same father but not mother). The impact of Half Blood relatives is seen in the applicability of the Intestacy provisions.
Half Secret Trust
Occasionally a person will create a trust where it is not apparent who the beneficiaries are. In the modern day they are rare but historically were common place where a testator wished to make provision for a mistress or illegitimate children, the identities of which were to remain secret form the rest of the testator's family.
Intestacy
Intestacy is the legal term to describe where a person has died without making a Will. In these circumstances the people who stand to benefit from the deceased's estate is regulated by the strict application of statutory rules.
Inheritance Tax
Where the value of a person's estate exceeds the threshold for Inheritance Tax (currently £325,000) the excess is taxed at 40%. This is subject to the applicability of the transferable nil rate band between spouses (please see below).
Inland Revenue Account
As part of the process of applying for a Grant of Probate, or any other form of Grant, it is necessary to file an Inland Revenue Account with HMRC setting out the value of the estate as at date of death.
Joint Tenancy
A Joint Tenancy describes the joint ownership of an asset, usually a property or land, whereby each owner is deemed to own the whole of the asset as opposed to distinct and separate shares as in the case of a Tenancy in Common (please see below). Where two owners own a property as joint tenants and one of them dies, the remaining owner retains ownership of the whole of the property irrespective of the provisions of the deceased person's Will or the operation of the intestacy provisions.
Knowledge and Approval
For a Will to be valid the testator (please see below) knows and approves of the contents of the Will. This may seem an obvious requirement but in some cases, particularly wit the elderly, it can be debateable whether this requirement has been fulfilled or not.
Lapse
Where the named recipient of a specific legacy dies before the testator (the person making the Will) unless there is a substitute recipient the gift fails (lapses) and forms part of the rest of the deceased residuary estate (please see below) and passes in accordance with residuary gift provisions of the Will.
Letters of Administration
Please see Grant of Letters of Administration (above)
Life Policy
The proceeds of a Life Policy where the policy holder is the life assured is paid upon the death of the policy holder. Often the proceeds will be written in trust and paid to nominated beneficiaries outside the provisions of any Will or the operation of the Intestacy provisions. As such the proceeds often don't form part of the deceased's estate for Inheritance Tax purposes.
Lasting Power of Attorney
Where a person is unable to manage their financial affairs they may appoint another person to mange those affairs for them. Often people will prepare a Lasting Power of Attorney but not use it unless they lose mental capacity.
Minor
A minor is a child who has yet to attain 18 years. As such a parent testator will appoint guardians through their Will to look after the minor in the event of that parent's premature death
Mirror Wills
Often, a married couple or partners in a long term relationship will prepare Wills that mirror each other. For example a married couple may state that on the death of the first of them all the estate passes to the survivor of them and upon second death to the children in equal shares.
Mutual Wills
A Mutual Will describes a set of Wills whereby each testator agrees that upon the death of the first of them the survivor will not change their own Will.
Notice of Severance
A Joint Tenancy (please see above) can be converted to a Tenancy in Common (please see below) by one of the joint owners serving notice on the other owner(s) of their intention to do so.
Nominations
Under an Occupational Pension Scheme where a person dies whilst paying into their pension fund a death benefit arises (death in service benefit). This should be nominated to pass to a particular person and will take effect irrespective of the provisions of the deceased's Will or the operation of the Intestacy provisions. Historically nominations have also applied to National Savings Products although this is now rare.
Oath for Executors
As part of the process of applying for a Grant of Representation the Personal Representatives (please see below) are required to swear on Oath a number of details which will form the basis of the Grant itself. The Oath will include amongst other things personal details of both deceased and the executors, and the value of the estate.
Office Copy
When applying for a Grant of Representation the Probate Registry will issue on request a number of sealed office copies of the Grant which can then be sent to the various financial institutions who hold assets of the deceased in support of the application to encash those assets.
Probate Registry
An application for a Grant of Representation can be made to any one of the Probate Registries located throughout England and Wales - most often people will choose their most local Registry.
Privileged Wills
A soldier, airman or seaman within the meaning of the relevant legislation may make a valid Will in circumstances where it is not possible to comply with the general rules that apply to the layman when he or she makes a Will.
Personal Chattels
This describes anything asset other than property, land or monetary assets such as bank accounts or equity based investments. Often people will state in their Will which personal effects, such as jewellery or vehicles, should pass to whom.
Quasi-Trustee
This describes the unusual situation where a person, without authority, acts as a trustee (please see below) and is held liable as though he were a trustee.
Realty
This describes real property, that's to say any land, or building on it, or any rights over land, such as a right of way.
Renunciation
An executor named in a Will may renounce their right to take up a Grant of Representation. This needs to be done by signing a Deed of Renunciation.
Residuary Estate
The Residuary Estate of a deceased person is what assets are left in their estate after the deduction of any debts as at date of death, , taxes such as Inheritance Tax or Income Tax,, administration expenses such as legal fees incurred in connection with the administration of the deceased's person's estate, and legacies. In the deceased's Will the Residuary Estate will be nominated to pass to named beneficiaries.
Statutory Legacy
Where a person dies Intestate (please see above) leaving a surviving spouse or civil partner, he or she will be entitled as a matter of law to part of the deceased's estate. The value of the entitlelement will depend on a number of factors, including the value or the estate and which other relatives have survived.
Standing Search
This allows any person to ask the Probate Registry to automatically notify them as soon as a Grant of Probate to a particular estate has been extracted. This could be relevant for example when someone feels they should have be provided for in a Will and haven't. The standing search will allow them sight of the Will whereupon they could bring a claim against the estate for financial provision.
Testator
The title Testator is given to the person who is making their Will. Whilst this can be applied to both males and females, occasionally a female will be referred to as a Testatrix.
Tenancy in Common
Unlike a Joint Tenancy (please see above), a Tenancy in Common
describes the legal status of joint property where the respective shares of each owner in the property are distinct and separate and as such the respective interests can pass in accordance with the provisions of the deceased's owners Will or the operation of the Intestacy provisions.
Trust
A Trust can arise in a whole range of circumstances. In its simplest a Trust will comprise a trust asset such as a property or investments which are transferred to named trustees who will manage the trust asset for the benefit of one or more beneficiaries.
Undue Influence
Where a person enters into an agreement or disposes of the property, for example through their Will, if it can be shown that in carrying out that act they were acting under the improper influence of another person the Will may be held invalid.
Vesting Assent
When a person dies the legal ownership vests in the executors of the Will who will hold the deceased's property on trust pending transferring the property to persons entitled to that property under the Will. The process of transferring the property to the beneficiary is known as a Vesting Assent.
Will
A Will is a written document signed by a testator (please see above) which upon the death of the testator serves to leave the testator's estate to named beneficiaries
Whole blood
Persons are said to be whole blood to one another when they are descended from the same two parents only (e.g. they share the same father but not mother). The impact of Whole Blood relatives is seen in the applicability of the Intestacy provisions.
Executor's Year
Executors cannot be compelled to distribute the assets of the estate until at least one year has elapsed from the date of death This is commonly referred to as the Executor's Year.
Re Zouche
Where a Will contains gifts of Personal Chattels (please see above) it is preferable that they are in the deceased possession and control at the date of death. This was not the case in the case of Re Zouche where books that were the subject of a specific legacy had been handed to the British Museum before death - the gift failed.
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