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Wendell L. Belknap
411 5th Street
Oregon City, OR 97045

Tel: 503-657-8946
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wendell@belknaplaw.com

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Probate




Glossary of Legal Terms


There is nothing impressive about an attorney using arcane legal words unknown to the client. Legal terminology often is overwhelming and not understood by the client. At the same time, many of these arcane legal words may come up during the legal process. Set forth below is a glossary of legal terms often used in probate matters. Having definitions for these terms may be helpful to you to better understand your particular legal matter. Of course, it is not possible for any glossary to contain a complete list of all terms you may encounter. You should feel free to ask me to explain any legal term I may use with which you are not familiar.


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A-B Trust
A will or trust provision, generally for a married couple, set up to form two estates at the death of the first spouse: (A) a revocable survivor’s estate, and (B) an irrevocable credit bypass trust designed to hold the deceased spouse’s assets up to the amount of the decedent’s available estate tax exclusion. This is also known as a “credit shelter trust” or “bypass trust.”
Ademption
A specific bequest in a will to a beneficiary that is not effective because the item to be gifted is no longer owned by the testator. That gift in the will is revoked by virtue of having been given away by the testator before the testator’s death.
Ademption by Satisfaction
A specific bequest in a will to a beneficiary that is not effective because the gift has been advanced to the intended beneficiary. See "Advancement."
Administration
Any proceeding relating to the estate of a decedent, whether the decedent died testate, intestate or partially intestate. See ORS 111.005(3). See also "Probate."
Administrator
A person named in a will and appointed by a court to administer the estate is known as a personal representative. When the decedent had no will, the decedent did not name a personal representative in the will, or all the personal representatives named in the will are unable or unwilling to serve, the person appointed by the court to administer the estate is known as an administrator. The roles of the personal representative and the administrator are otherwise the same.
Advance Directive
A document signed by a person specifying what level of care generally, and what level of tube-feeding and life support specifically, the signor wants in the event the signor is unable to speak for himself/herself and has one of multiple terminal conditions set forth in ORS 127.531.
Advancement
A gift made by a testator to a beneficiary named in the testator’s will, but which is made while the testator is still living and which is intended to satisfy (in whole or in part) in advance the gift in the will. See ORS 112.135 and ORS 112.145.
Affiant
In the context of a small estate in Oregon, this is the person who signs the Small Estate Affidavit. See ORS 114.505(1).
Affiant’s Deed
At the end of the small estate process, this is the deed from the affiant to the parties entitled to the real property.
Affidavit
A voluntary written statement of facts confirmed by the oath of the signer.
Affidavit of Claiming Successor
Commonly referred to as Small Estate Affidavit, this is the Affidavit filed by an affiant or claiming successor when the estate qualifies as a small estate. See ORS 114.525.
After-Born Children
Those children born to a testator after the testator has executed a will.
Agent
A person authorized by another to act for him/her.
A.K.A.
Short form reference for “Also Known As.”
Alternate Date of Death
The personal representative (or administrator) of an estate has the option to appraise or value assets as of the decedent’s date of death, or six months after the date of death of the decedent. The date six months after the date of death of the decedent is known as the "alternate date of death." There are tax considerations which should be factored into determining which date should be used in establishing asset values.
Ancestor
A relative such as a parent or grandparent from whom one is descended. AKA an ascendant.
Ancillary Administration
Secondary probate brought in a state where the decedent owned real property and which is not the state where the primary probate is filed. This is done in conjunction with, and at the same time as, the primary probate. This is necessary because an Oregon probate court cannot order a distribution of real property located in another state.
Annual Exclusion
See "Gift-Tax Annual Exclusion."
Annuity
The right to receive fixed sums of money at regular intervals, usually annually.
Appoint
To designate and empower a particular person with authority to perform specified duties.
Appraisal
An evaluation by a disinterested and qualified person as to the value of an asset.
Appreciated Property
Property whose value as of the date of death of the decedent, or the alternate date of death, is greater than the decedent’s basis in the property.
Ascendants
The ancestors of a person, either alive or deceased, such as parents or grandparents.
Assessed Valuation
The value placed upon property by the appropriate taxing authorities.
Assets
All property of the decedent: real or personal, tangible or intangible. See ORS 111.005(6).
Attestation Clause
A clause in a self-proving affidavit setting forth all the facts necessary to provide the validity of the will and its proper execution.
Attorney-in-fact
A person with the authority to act for the grantor by the power granted under a power of attorney.
Basis
A person’s cost or investment in an asset. Basis is used to calculate capital gains (or losses) on a sale (sales price less basis equals capital gain or loss). Basis is adjusted (stepped-up or down) at a person’s death to the fair market value of the asset on the date of death, or on the alternate date of death.
Beneficiary
In probate, a person who inherits some or all of the assets of a decedent. Also refers to the person entitled to the income of a trust, the person entitled to the proceeds of an insurance policy, or the person entitled to proceeds from a retirement account.
Beneficiary Designation
The act whereby the decedent, prior to death, identifies the recipient(s) of his/her assets.
Bequest
An archaic term that technically refers only to a gift of personal property in a will. A bequest is therefore different from a devise, which technically refers only to a gift of real property in a will. However, in recent times the two terms have begun to be used interchangeably or together, as in, "I give, devise and bequeath" and apply to both real and personal property.
Bequest (Residuary)
A gift of the balance of the decedent’s assets after payment of debts and the giving of other specific bequests.
Bequest (Specific)
A gift in a will of a specific item or specific class of property.
Bond
See "Surety Bond."
By Right of Representation
See "Per Stirpes."
Bypass Trust
See "A-B Trust."
Capacity
To have capacity is to be of legal age (majority in Oregon is age 18) and to be able to understand the nature and effect of your acts.
Capital Gains and Losses
A tax calculation, generally the difference between the sales price and the Seller’s initial purchase price (basis).
Certified Copy
A copy of a court document evidenced by a court stamp and an original signature by a court officer certifying that the copy is a true and correct copy of the original document retained by the Court.
Charitable Remainder Trust ("CRT")
An irrevocable trust into which the grantor transfers highly appreciated assets (e.g., investment real estate, stocks, etc.) from which the grantor receives income during his lifetime. The property transfers to a specified charity at the grantor’s death.
Charitable Trust
A trust having a charitable organization as a beneficiary.
Claim
A document filed by a creditor asserting an amount the decedent owed the creditor as of the decedent’s date of death. See ORS 115.005.
Claimant
A person or entity who files a claim.
Class Gift
A gift to all members of a named class. For example: “To My Children...”
Codicil
An amendment to a will. A codicil must be executed with all the formalities of a will, and is generally used for no more than a few changes. A codicil must be read in conjunction with the will it amends; therefore, for numerous or major changes, an entirely new will is generally recommended.
Common Law Marriage
When an unmarried couple is treated as a married couple due to the mere passage of a specified period of time. Common law marriage is not recognized in Oregon.
Community Property
In community property states, this is property owned by either spouse in which each has an undivided one-half interest in the property because of their marriage, regardless as to how title to the property is held. Oregon is not a community property state.
Competent
See "Capacity."
Conservator
A person appointed by a court and given the power, with court supervision, to administer the assets and financial interests of a legally disabled person (a ward or protected person).
Conservatorship
The court-monitored process wherein the conservator takes care of the financial interests of the ward or protected person.
Contest of a Will
Any interested person may challenge the validity of a will by the filing of a legal proceeding. Such a challenge requires grounds, such as undue influence, duress, or the like and must be filed in a timely manner. See ORS 113.075.
Contingent Beneficiary
A person who is not the primary beneficiary, but who will take the benefits of the primary beneficiary if certain events occur, such as the death of the primary beneficiary.
Corpus
Assets held by a trust.
Costs of Administration
The costs of administering an estate (as opposed to simply paying the debts of decedent), such as filing fees, appraiser fees, sales commissions, storage expenses, delivery charges, the personal representative's fees and the personal representative’s attorney's fees.
Co-Trustees
More than one trustee serving at the same time with simultaneous duties and responsibilities.
Credit Shelter Trust
See "A-B Trust."
Creditor
Someone with a claim against an estate because he/she is owed money by the decedent.
Creditor Search Affidavit
As part of probate during the three (3) months following appointment, the personal representative or administrator shall make reasonably diligent efforts to investigate the financial records of the decedent and determine the identity and address of all persons having a claim against the estate. Notice shall be provided to all creditors. An affidavit confirming compliance with this requirement shall be filed with the court within one-hundred twenty (120) days of appointment. See ORS 115.003.
Custodian
A person named by a donor, testator or personal representative to hold and manage property on behalf of a person (usually a minor), generally under a statute (e.g., the Uniform Transfers to Minors Act).
Custodian of the Will
The person who has physical possession of the will when the person who wrote the will dies. This person shall deliver the will to the personal representative named in the will within thirty (30) days of being notified of the testator’s death. See ORS 112.810.
D.O.D.
Abbreviation for "date of death."
Death Certificate
A document issued by the Vital Statistics Department of the State of Oregon that sets forth various matters about a deceased person, including the decedent’s name, date of birth, date of death, Social Security number, residence address, and cause of death.
Death Tax
See "Inheritance Tax."
Decedent
The person who died leaving property subject to administration. See ORS 111.005(9).
Demand for Notice
A written statement, filed with the court after the death of the decedent by a person with a financial interest in a decedent’s estate, who desires notice of any order or filing pertaining to the decedent’s estate.
Dependent
A person that relies on another for support (e.g. spouse, children, or other family).
Descendant
A person descended from another; an immediate or more remote offspring (e.g., a child or grandchild). See "Issue."
Devise
An archaic term that technically refers only to a gift of real property in a will. A devise is therefore different from a bequest, which technically refers only to a gift of personal property in a will. However, in recent times the two terms have begun to be used interchangeably or together, as in, "I give, devise and bequeath" and apply to both real and personal property. See ORS 111.005(11).
Devisee
A person designated in a will to receive a gift.
Directive to Physicians
See "Advance Directive."
Disclaimer
A written statement where an heir or devisee declines to accept all or part of the assets of an estate.
Disinheritance Clause
A will clause which specifies that a person specifically named in the will is not to receive anything from the estate. The primary purpose of such a clause is to keep the named individual from claiming that person was inadvertently left out of the will.
Distributee
A person who receives a share of a decedent’s estate. See ORS 111.005(13).
Distribution
A division of estate assets, pursuant to authority of the court, to those legally entitled to a share of the decedent’s estate.
Domicile
The residence of a person, including where the person generally resides, but is absent with an intent to return. See ORS 111.005(14).
Donee
The recipient of a gift.
Donor
The giver of a gift.
Duress
Pressure brought upon the testator with the intent to coerce the testator to make a devise contrary to that which would be made by the exercise of the testator’s free will.
Elective Share
You cannot entirely disinherit your spouse. A spouse can either take what is given to the spouse by the will, or elect against the will and take an elective share of the decedent’s estate. In Oregon, the elective share is one-half (½) of the decedent’s entire estate, which includes not only assets passing through probate, but also other assets passing by right of representation or by inter vivos transfer. See ORS 114.125.
Encumbrance
A lien or claim against property. A classic example is a home mortgage.
Equitable Interest
The interest held by a beneficiary of a trust, i.e., the right to use or receive property held by the trust, according to its terms.
Escheat
When there are no surviving beneficiaries of the estate, or of a specific asset, the asset escheats (passes) to and becomes the property of the State. See ORS 112.055.
Estate
The term has two meanings depending on the context. In the context of probate, "estate" means all probate assets. In the context of estate taxation, the meaning of "estate" includes all probate assets and may also include other non-probate assets.
Estate (Probate)
Assets in the decedent’s name alone which require probate in order to pass to another.
Estate (Non-Probate)
Assets which, by nature of how they are titled, do not require probate to pass to another. These include, but are not limited to assets held by husband and wife as tenants by the entirety and assets with a named beneficiary, such as an “ in trust for,” joint tenancy, “payable on death” (POD), or “transfer on death” (TOD) designation. Generally, it is not necessary to file a probate for such assets to pass to the named beneficiary.
Estate Tax
See "Death Tax."
Execute
To complete and sign a document, such as a will, with all statutorily-required formalities, such as witnesses or notary acknowledgment.
Executor
See "Personal Representative."
Exemption Trust
See "Bypass Trust"; "A-B Trust."
Exoneration
The satisfaction of all indebtedness on a specific gift prior to its transfer to its beneficiary.
Expert
One qualified by education, experience, and/or training to testify as to a particular matter in court.
Fair Market Value ("FMV")
The price which would be agreed upon by a willing buyer and a willing seller for an arm’s length sale of property on the open market.
Fee
The amount paid for services.
Fiduciary
The individual responsible for acting in the best interests of another party. Fiduciaries are bound by law to put aside personal interests and act in utmost good faith when making decisions for the benefit of another. Classic examples include, but are not limited to, personal representatives, administrators, executors, trustees, and attorneys.
Final Account
When the estate is ready for final settlement and distribution, the personal representative or administrator must file a Final Account itemizing, among other things, all money received and disbursements made by the estate, all administrative expenses incurred, and the share of each distributee. See ORS 116.083(3). Each distributee must be given at least twenty (20) days to file any objections to the Final Account, if any. See ORS 116.093.
Gift-Tax Annual Exclusion
The amount of money or value of property that can be given by one person to another as a gift to that recipient each year without having to file a gift tax return.
Gift-Tax Return
When one person gifts money or other property, or a combination of the two, to one other person in any calendar year in excess of the gift-tax annual exclusion, the giver must file a gift tax return with the Internal Revenue Service. Generally, there is no tax owed as a result of the gifts or the gift tax return filing. Rather, the amount of the giver’s estate that is exempt from death taxes at the giver’s death is reduced by the amount of the gift.
Grantor
The person who transfers assets, either directly, or into a trust for the benefit of another.
Gross Estate
The total value of the decedent’s assets owned at death, or that are included in the decedent’s estate, before debts, taxes, and other expenses or liabilities have been deducted. For federal estate tax purposes, the value is determined at the date of death or on at the alternate date of death six months after death, whichever is selected by the personal representative or administrator.
Guardian
An individual appointed by the court to manage the physical well being of a person incapable of taking care of himself, such as a minor or an incapacitated adult.
Guardianship
The court proceeding whereby a guardian is appointed to act on behalf of an incapacitated person.
Health Care Power of Attorney
A document by which one person appoints another person to make health care decisions for the first person upon that person becoming incapacitated or otherwise unable to make such decisions on his/her own.
Heir/Heiress
A male (heir) or female (heiress) entitled by law to inherit a portion of the estate of a person who died without a will (intestate). See ORS 111.005(18). An heir is different from a beneficiary, who inherits due to an express direction in a will. In Oregon, there are statutes (the laws of intestate succession, ORS 112.015 - ORS 112.045) used to determine who qualifies as an heir in the event a person dies intestate, or without a valid will.
Holographic Will
A will written entirely in a testator’s handwriting. A holographic will differs from a statutory will in that a holographic will does not need to be witnessed in order to be valid. Holographic wills are not valid in Oregon.
In Terrorem Clause
Provision in a will which states that anyone who contests any aspect of the will forfeits any assets given to that person as set forth in the will. See ORS 112.272.
Incapacitated Person
A person who has been determined by the court to lack the capacity to manage at least some of the property or to meet at least some of the essential health and safety requirements of that person, either because the person lacks the mental ability to do so, or because the person is under the age of eighteen (18) and therefore lacks the capacity to decide by definition, due to that person’s minority.
Incompetent
See "Incapacitated Person."
Information to Heirs and Devisees
Upon appointment, the personal representative or administrator shall deliver or mail to all heirs and devisees, as well as several state agencies, information regarding the decedent’s death, the case filing and case number, and the identities and contact information of the personal representative or administrator, and the contact information for the estate attorney. See ORS 113.145.
Inherit
To receive something from a person’s estate upon that person’s death.
Inheritance
That which is received from another person’s estate upon his/her death.
Inheritance Tax
The tax imposed on an estate by state and federal governments when the estate consists of assets with a value in excess of a set amount. Oregon’s inheritance tax begins when the estate is valued in excess of $1,000,000.00.
Inter Vivos Transfer
The transfer of property between living persons, while both are still living (Inter = Between; Vivos = Living).
Inter Vivos Trust
A trust created and funded during the lifetime of the trustor. An inter vivos trust is different than a testamentary trust, which is established as an aspect of probate. Usually the trustor of an inter vivos trust is also a beneficiary of the trust, and may also serve as a trustee.
Interested Person/Party
An heir or devisee, or any other person having a right to, or a claim against, a deceased person’s estate. Creditors, as well as state and county agencies in certain circumstances, are interested persons.
Intestate
When an individual dies without a will. An individual who dies having made a will dies testate. See ORS 111.005(20).
Intestate Estate
Probate assets held solely in the name of a person who dies without leaving a valid will. In contrast, see "Testate Estate."
Intestate Succession
The order of who inherits, and what percentages, of the intestate estate of another. See ORS 111.005(21).
Inventory
A list of estate assets and values and estate liabilities which is filed with the court. This must be filed with the court within sixty (60) days of the appointment of the personal representative or administrator. See ORS 113.165.
Irrevocable
That which cannot be changed or revoked.
Irrevocable Trust
A trust that cannot be revoked or changed in any way.
Issue
Biological and adopted children and their issue and, when used to refer to persons who take a intestate succession, includes all lineal descendants, except those who are the lineal descendants of living lineal descendants. See ORS 111.005(22). The natural and adopted children, grandchildren, and other lineal descendants of a particular person.
Joint Ownership
The ownership of property by two or more people, with or without the right of survivorship (when property is held with a right of survivorship it means that, upon the death of one, the other owner assumes ownership automatically and without the need of probate to complete the transfer. In many cases, recording or filing the death certificate of the decedent is necessary to complete the transfer).
Joint Property
Property owned jointly with another person. See "Joint Ownership."
Joint Tenancy
Every conveyance of an interest in real property to two or more persons as trustees or personal representatives creates a joint tenancy in that property, unless the conveyance provides otherwise. See ORS 93.190. Other than such a conveyance, joint tenancy in real property is abolished in Oregon. See ORS 93.180(3).
Joint Will
A single will that is signed by two or more persons (usually spouses) as their separate wills, and is to be probated after the death of each testator. These are seldom done and are generally disfavored.
Jurisdiction
The authority of a court to act on a matter.
Last Will
The most-recent will executed by an individual which generally revokes any former existing wills.
Legatee
A person named in a will. (See "Devisee").
Letters of Administration
Document issued by the court giving the administrator authority to act on behalf of an intestate estate. This is in contrast to Letters Testamentary, which is a document issued by the probate court to give the personal representative authority to act on behalf of a testate estate. See ORS 113.125. Contrary to what the name indicates (ending in an “s”), this is a single-page document created by the court.
Letters of Guardianship
The document issued by the court which gives the guardian authority to act on behalf of the physical well-being of the ward or protected person. Contrary to what the name indicates (ending in an “s”), this is a single-page document created by the court.
Letters Testamentary
Document issued by the court to give the personal representative authority to act on behalf of a testate estate. This is in contrast to Letters of Administration which is a document issued by the probate court to give the administrator authority to act on behalf of an intestate estate. See ORS 113.125. Contrary to what the name indicates (ending in an “s”), this is a single-page document created by the court.
Liabilities
Outstanding debts owed by the decedent.
Life Insurance Trust
A trust funded from life insurance proceeds.
Liquid Assets
Bank accounts, CDs, cash, coin, and anything that can be quickly and easily converted to cash.
Living Trust
Generally, a revocable trust established by a grantor during the grantor’s lifetime in which the grantor transfers some or all property into the trust, while retaining dominion and control over the assets while still living. The primary purpose of a living trust is probate avoidance.
Living Will
A legal document in which an individual states, in advance of final illness or injury, that individual’s wishes regarding procedures and equipment designed to extend life by artificial means when one has a terminal illness or progressive disease. See "Advance Directive."
Marital Deduction
In the context of the estate tax, it refers to the policy of the Federal government that property passing to a spouse under a will or the laws of intestate succession does so without being subject to estate taxes. There is no limit to the marital deduction if the surviving spouse is a United States citizen. Different rules apply to the marital deduction as it applies to non-citizens.
Minor
In Oregon, a person under eighteen (18) years of age.
Next of Kin
The closest living relative as of the date of death of the decedent.
No-Contest Clause
See "In Terrorem Clause."
Non-Probate Assets
Assets owned by the decedent which are not subject to distribution via probate because there is a named beneficiary or joint owner with a right of survivorship to whom the property passes automatically. Classic examples are life insurance or retirement benefits with a named beneficiary, bank or stock accounts with a joint owner, P.O.D., or T.O.D. designation, or real property held with another person who has a right of survivorship, such as with a tenancy by the entirety. In contrast, see "Probate Assets."
Notarization
The attestation by a notary that a document was signed under oath and that the person who signed the document is that person. Notaries are authorized by the State of Oregon to notarize. To notarize is the act of the notary attesting to the signature and affixing the notary’s signature and seal to the document.
Notary
A person with a state commission to attest to the validity of the signatures on documents.
Notice - (or giving notice)
A written announcement to persons entitled to know what has transpired or will transpire. When personal representatives comply with notice requirements, they give interested persons information about what is happening in the case, and protect the estate (and themselves) from claims that proper procedures were not followed. Generally, notice should be sent to: heirs and/or devisees of an estate; persons who have or may have an interest in the estate of the decedent; estate creditors; anyone who asks for notice; and, anyone who files a Demand for Notice.
Notice To Interested Persons
See "Notice."
Oath
A solemn affirmation to tell the truth.
P.O.D.
Abbreviation for “Payable on death.” Generally, passes to the person as a non-probate asset. See "T.O.D.."
Per Stirpes
A way of dividing property among a decedent's issue, such that the children of a person who would have been an heir or beneficiary, but died before the decedent, divide among them the share their parent would have received. Per stirpes distribution is generally considered to be the fairest way of dividing the estate.
Personal Effects
Personal belongings (such as clothing, pictures, mementos). Personal effects may have little value as assets, but may have sentimental value to relatives.
Personal Property
Any property that is not real property. See ORS 111.005(25).
Personal Representative
The person responsible for administration of a testate estate. Sometimes referred to as an executor (an older term) or administrator (a term actually appropriate only in intestate estates), the personal representative is the person appointed by the court to administer the estate of the decedent by giving notice of his/her appointment, liquidating assets, paying claims of the estate, and then distributing the estate according to the will. A personal representative generally has the authority to do almost anything the decedent could have done with his/her property during his/her lifetime.
Personal Representative’s Deed
A deed from the personal representative to someone who purchases real property from the estate, or to the heirs and/or devisees of the estate at the closing of the estate.
Petition
A written request to the court for an order or judgment.
Pour-Over Will
A will that transfers property to a pre-existing trust at the death of the testator. Usually done in conjunction with a living trust.
Power of Appointment
A right given to another in a written instrument, such as a will or trust, that allows the other to decide how to distribute the property. The power of appointment is "general" if it places no restrictions on whom the distributees may be. A power is "limited" or "special" if it limits the eventual distributee.
Power of Attorney
A legal document authorizing one individual to act as the agent or attorney-in-fact for another (the "principal"). If the attorney is authorized to act in behalf of another for all matters, he/she has a general power of attorney. If the attorney is authorized to act in behalf of specified matters, he/she has a special power of attorney. If the authority granted extends beyond the disability of the principal, the attorney has a durable power of attorney. All forms of power of attorney expire on the death of the principal.
Pretermitted Children
An after-born child of a testator who is not mentioned nor provided for in the will of the testator and who survives the testator. Whether this child received anything pursuant to the will depends on various factors. See ORS 112.405.
Pro Rata
The share received by a member of a class based upon the number of people in the class. The pro-rata share of a person in a class of four people would be 25%.
Probate
The legal process of settling the estate of a decedent, through the court, including identifying and collecting all assets, paying all debts and taxes, and distributing the remaining property to the beneficiaries entitled to receive it. Includes both testate estates and intestate estates. Also known as "Administration."
Probate Assets
Assets owned by the decedent subject to distribution via probate because there is no named beneficiary or joint owner with a right of survivorship to whom the property passes automatically as a non-probate asset. A classic example is real property owned in the decedent's sole name. In contrast, see "Non-Probate Assets."
Probate Code
The body of law in the Oregon statutes that governs the estate of a decedent. In Oregon, this is generally found in ORS 111 - 118.
Probate Estate
All property which passes subject to the will of a decedent or according to the laws of intestate succession. Generally, it does not include property passing by a non-testamentary transfer (such as joint ownership) or by the terms of a trust, nor does it usually include the proceeds of a life insurance policy.
Probate of Will
The steps necessary to establish the validity of a will, admit it to probate, and then administer the estate through the probate process.
Pro Se
Latin phrase which refers to a person representing himself/herself, without an attorney.
Protected Person
A person who is under a guardian’s charge or protection. See "Ward."
"Prudent Investor" Rule
Refers to the duty of a fiduciary to invest and manage assets in a conservative manner generally designed to protect the assets of the beneficiary of the fund, without taking unwarranted or imprudent risks.
Real Property
All real estate, including land, fixed improvements (buildings), and growing things thereon. Excludes personal property. See ORS 111.005(28).
Receipt
Document signed by the beneficiary of an estate acknowledging having received the estate assets to which the Beneficiary is entitled. All receipts for all estate assets must be filed with the court before the estate may be closed.
Remainderman
In the case of a trust, this term refers to the individual who will receive the principal of the trust upon cessation or termination of the trust.
Revocable Trust
A type of trust that can be terminated by the settlor (creator) at any time (the opposite of an irrevocable trust). See "Living Trust."
Rescind
To cancel; revoke; terminate.
Residuary Devise
A devise of the balance of the estate assets which remain after the specific gifts have been distributed.
Residuary Estate
The estate assets that remain after all specific bequests are made.
Residue
See "Residuary Estate."
Revocable
Capable of being changed or revoked.
Revocation
The act of revoking.
Revoked
Refers to a document that the maker has cancelled. If a will is revoked, it has no effect.
Right of Survivorship
This right of a co-owner of property provides that in the event of the death of either co-owner the surviving co-owner receives ownership in full without having to pass through probate. In Oregon, this is presumed if the property is jointly held by married persons as joint tenants. Otherwise, the right of survivorship must be set forth in the title documents or there is no right of survivorship between the co-owners.
SS-4
The application form that is used to apply for a federal tax identification number with the IRS.
Seal
A notary seal or a stamp, seal of the court, etc., which proves the authenticity of a document or of a signature.
Self Dealing
This occurs when a fiduciary conducts business with himself individually.
Self-Proved Will
Refers to a will that has a self-proving affidavit attached to prove that the will was properly executed with all requisite formalities. A self-proved will is easier to probate than a will that is not self-proved, as all the facts necessary to prove the validity of the will are presumed to exist.
Self-Proving Affidavit
A document, separate from a will, but generally attached to it, sworn to and signed by the witnesses to the will before a notary. The affidavit is usually executed at the same time as the will, but is not required to be. The affidavit sets forth all the facts necessary to prove the validity of the will and makes the will self-proved.
Separate Property
Property that is not jointly owned with another.
Settlor
An individual who establishes a trust in order to transfer property. (See "Grantor"; "Trustor").
Share
The part of an estate which an heir or beneficiary will receive.
Sibling
A brother or a sister.
Small Estate
In Oregon, when the decedent’s estate consists of real property having a fair market value of not more than $200,000.00, and/or personal property having a fair market value of not more than $75,000.00, a full probate is not necessary and the estate may be administered by the filing of a Small Estate Affidavit. This may not be filed until thirty (30) days or more after the decedent’s death. See ORS 114.515.
Small Estate Affidavit
See "Affidavit of Claiming Successor."
Stepped Up Basis
A beneficiary who receives an asset from an estate takes a basis in the asset equal to the fair market value (FMV) of the asset as of the decedent’s date of death or alternate date of death. When the FMV of the asset is greater than the decedent’s basis, the beneficiary takes the higher, or "stepped up," basis. Under current tax law, the increased basis is not taxed.
Subpoena
A document ordering an individual to appear in court and give testimony.
Surety Bond
Obligation of a guarantor, such as a bonding company, to pay the estate for any damages to the estate resulting from the failure of a fiduciary to perform his/her statutory duties owed to the estate.
T.O.D.
Abbreviation for “Transfer on death.” Generally, passes to the person as a non-probate asset. See "P.O.D.."
Taxable Estate
Refers to the property of a decedent that is subject to the inheritance tax. Generally the taxable estate is equal to the value of the probate assets, less deductions such as any debts of the decedent, expenses of administration, and property subject to the unlimited marital deduction, but may also include other non-probate assets.
Tenancy in Common
A form of ownership by two or more persons such that when one owner dies, that person's interest in the property does not pass automatically to the surviving owner, but rather passes as set forth in the decedent’s will (or, if there is no will, pursuant to the laws of intestate succession).
Tenancy by the Entirety
Real or personal property held by husband and wife is held as tenants by the entirety. With this form of ownership, at one spouse’s death the other spouse automatically inherits the decedent’s interest. This form of ownership provides certain protections against creditors that are not available with other forms of ownership. Probate is not necessary to complete this transfer.
Testament
Another name for a will.
Testamentary
All items that pertain to the last will of the decedent.
Testamentary Trust
A trust that is created in the trustor's will, and thus does not come into existence until the death of the trustor and the admission of the trustor's will to probate.
Testate
When one dies leaving a valid will. An individual who dies without having made a will dies intestate.
Testate Estate
Probate assets held solely in the name of a decedent who died leaving a valid will. In contrast, see "Intestate Estate."
Testator
An individual who dies leaving a will signed by him. A person who makes a valid will.
Testatrix
A female testator.
Title
A document that establishes ownership of property.
Trust
A written legal instrument created by a grantor during his lifetime, or at his death, for the benefit of another.
Trust Fund
Property held in trust. This term originally applied only to money held in trust, but is frequently used when referring to all property held in trust.
Trustee
The person that holds, manages, and distributes trust property pursuant to the terms of a trust.
Trustor
The creator of a trust. Also known as the settlor.
Verified Statement In Lieu of Final Account
If all distributees agree in writing, the personal representative or administrator may avoid filing a Final Account and may file a Verified Statement In Lieu Of Final Account, or short-form Final Account. In this Verified Statement, all distributees waive the right to have a formal accounting filed with the court and any objection period. These are generally much quicker than a full Final Account. See ORS 116.083(4).
Waiver
The voluntary relinquishment of a privilege or a right.
Ward
A person who is under a guardian’s charge or protection. See "Protected Person."
Will
A legal document expressing the wishes of an individual regarding distribution of his property after his death. See "Testament."
Witness
As it pertains to a will, a person who is present at the time the will is signed by the testator and the other witnesses, and who signs the will after the testator, verifying that the testator was competent and acting freely.