Understanding Terms and Definitions
[Staff Writers]
Absolute assignment: A policy assignment under which the assignee receives full control over the policy and full rights to its benefits.
Administration: The process of handling the affairs of a deceased person’s estate or a trust.
Administrator: The person or financial institution that is appointed to take care of the estate of a deceased person who died without a will; may be known as a “personal representative“
Alternate valuation: With certain exceptions, the value of all property includable in the decedent’s gross estate six months after the decedent’s date of death. If an asset is sold or distributed, its sale price or value on the date of distribution is the alternate value. In either case, the sale or distribution must occur within six months of death.
Alternate valuation date: Six months from the date of death.
Ancillary administration: Probate proceedings in another state.
Attorney in fact: The person holding power to act for another under a Power of Attorney document.
Basis: The value subtracted from the net sales price to calculate gain or loss for capital gains tax purposes.
Beneficial interest: A financial or other valuable interest arising from an insurance policy between owners and key employees.
Beneficiary: Usually refers to a person or entity that is entitled to receive something, for example, a beneficiary of an estate or trust, or a beneficiary of life insurance or retirement benefits.
Bypass trust: An estate planning device (also called a credit shelter trust, family trust, or B trust in “AB” plans where the A trust funds for the marital deduction) used to minimize the combined estate taxes payable by spouses whereby, at the death of the first spouse, the estate is divided into two parts and one part is placed in trust usually to benefit the surviving spouse without being taxed at the surviving spouse’s death, while the other part passes outright to the surviving spouse or is placed in a marital deduction trust. A by-pass trust permits a maximum of from $1.5 million in 2005 to $3.5 million in 2009, to transfer to heirs of the spouses on an estate tax free basis under the unified gift and estate tax. The estate tax disappears completely in 2010
Charitable gift annuity: An arrangement whereby the donor makes a gift to charity and receives back a guaranteed lifetime (or joint lifetime) income based on the age(s) of the annuitant(s).
Charitable lead trust: An arrangement whereby the charity receives an income from a trust for a period of years, then the remainder is paid to non-charitable beneficiaries (generally either the donor or his or her heirs).
Charitable remainder annuity trust: A charitable trust arrangement whereby the donor or other beneficiary is paid annually an income of a fixed amount of at least 5% but not more than 50% of the initial fair market value of property placed in the trust, for life or for a period of up to 20 years; one or more qualified charitable organizations must be named to receive the remainder interest upon the death of the donor or other income beneficiaries, and the value of the charitable remainder interest must be at least 10% of the net fair market value of all property transferred to the trust, as determined at the time of the transfer.
Charitable remainder trust: An arrangement wherein the remainder interest goes to a legal charity upon the termination or failure of a prior interest.
Charitable remainder unitrust: A charitable trust arrangement whereby the donor or other beneficiary is paid annually an income of a fixed percentage of at least 5% but not more than 50% of the annually revalued trust assets, for life or for a period of up to 20 years; one or more qualified charitable organizations must be named to receive the remainder interest upon the death of the donor or other income beneficiaries, and the value of the charitable remainder interest must be at least 10% of the net fair market value of all property transferred to the trust, as determined at the time of the transfer.
Claim: Usually refers to funeral expenses, the debts of a deceased person, and expenses of administration.
Codicil: A legal document, which supplements and changes an existing will; generally used to make minor changes to the original will.
Collateral assignment: When a life insurance contract is transferred to an individual or other party as security for a debt.
Community property: Ten states (Alaska, Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin) use some form of the community property system to determine the interest of a husband and wife in property acquired during marriage.
Conservator: An adult person or financial institution appointed by a court, who is responsible for a minor child’s or legally incapacitated person’s property until that minor child becomes an adult or the legally incapacitated person becomes competent to be responsible for his or her own property; may be know as “guardian of the estate.”
Crummy trust: A trust established granting a beneficiary a limited power to withdraw income or principal or both. This power is exercisable during a limited period of time each year and is non-cumulative. The power of withdrawal is generally limited to the amount excludable from gift tax liability under the annual gift tax exclusion or to the greater of $5,000 or 5 percent of the trust property.
Declarations: Statements in an insurance contract that provide information about the property or life to be insured and used for underwriting and rating purposes and identification of the property or life to be insured.
Devise: Refers to an inheritance of real or personal property under a will, or may mean to dispose of real or personal property by will.
Devisee: A person or entity designated in a will to receive a devise.
Disclaimant: One who makes a disclaimer.
Domicile: One’s home or permanent residence where the laws of the state of a person’s domicile determine what happens to property at death.
Donee: The recipient of a gift.
Donor: A person who makes a gift; may refer to a person who establishes a living trust.
Dower: The life estate of a widow in the property of her husband.
Durable power of attorney: A legal document appointing another person (the Attorney in Fact) to act on behalf of another, even if that person becomes disabled or incapacitated.
Durable power of attorney for healthcare: A legal document that gives another person the power to make certain decisions regarding healthcare.
ERISA: The acronym for the Employee Retirement Income Security Act of 1974, a federal law that established minimum standards for certain employee benefit plans, especially qualified employer retirement plans.
Escheat: Assigning property to the state when a one dies with no known beneficiaries or heirs.
Estate: All of one’s assets included in an estate for tax purposes; also used to refer to those items of property that are subject to administration in the probate court.
Estate planning: The process of arranging one’s personal and financial affairs.
Executor: The person or financial institution that is appointed to administer the estate of a deceased person who died with a will; also known as a “personal representative.”
Family Limited Partnership: A form of holding property combining some of the advantages of holding property as a corporation with some of the advantages of owning property in a partnership.
Fiduciary: From the Latin word meaning trust and confidence and used to refer to a person (or entity) that serves in a representative capacity; personal representatives, trustees, guardians, conservators, and agents under powers of attorney are all fiduciaries; to stand in a position of confidence and trust with respect to each heir, devisee, and/or beneficiary.
Formal Probate: A proceeding before a probate judge to determine whether a decedent left a valid will.
Future interest: An ownership interest in property in which unlimited possession or enjoyment of property is delayed until some future time
Generation skipping transfer: A transfer of property, usually in trust, that is designed to provide benefits for beneficiaries who are two or more generations younger than the generation of the grantor.
Generation skipping transfer tax: A transfer tax generally assessed on transfers to grandchildren, great grandchildren and others who are at least two generations younger than the donor.
Generation skipping transfer tax exemption: An exemption from generation-skipping tax for transfers by an individual either during life or at death.
Generation skipping trust: Any trust having beneficiaries who belong to two or more generations younger than the grantor.
Grantor: A person that established a living trust. It is also used to refer to one who is transferring real estate in a deed.
Gross estate: The total property or assets held by a person as defined for federal estate tax purposes.
Guardian: An adult person appointed by a surviving parent in his or her will or by a court, who is responsible for a minor child or legally incapacitated person’s personal care and nurturing.
Heir: Person, who inherits property from the estate of a deceased person who died without a will.
Holographic will: A will entirely in the handwriting of the signer. Although valid in some states in some circumstances, most lawyers advise strongly against such wills
Incapacitated person: A person who is impaired by reason of mental illness, mental deficiency, physical illness or disability, advanced age, chronic use of drugs, chronic intoxication, or other cause (except minority) to the extent of lacking sufficient understanding or capacity to make or communicate responsible decisions.
Inter vivos trust: A living trust.
Intestate: Refers to dying without a will.
Irrevocable trust: A trust that can no longer be amended or revoked by anyone; most revocable trusts become irrevocable at some time, for example, when the person who established the trust dies.
Joint and survivor insurance: A policy underwritten on the life of two persons, usually husband and wife or business partners.
Joint tenancy with right of survivorship: A form for holding undivided title to property among more than one person. When one of the co-owners dies, the other becomes the sole owner of the property.
Legally incapacitated person: One determined by a court as not capable of handling personal and/or financial affairs
Living trust: A trust that one establishes during one’s lifetime which is not part of one’s will, but is usually established by a separate written trust agreement; an “inter vivos trust” also sometimes referred to as a revocable living trust.
Living will: A legal document stating that the signer does want to be kept alive by artificial or extraordinary means, when there is no expectation of recovery from a physical or mental disability. The enforceability of such documents is unclear in absence of applicable legislation.
Marital deduction: A deduction allowing for the unlimited transfer of any or all property from one spouse to the other generally free from estate or gift tax.
Per stirpes: A way of distributing an estate so that the surviving descendants will receive only what their immediate ancestor would have received if he or she had been alive at the time of death; state laws vary.
Personal representative: The person or financial institution appointed by the probate register or the court to administer a deceased person’s estate
Pour over will: This is a will used to transfer (pour over) into a trust any property that is left in a person’s estate after death.
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 your property. The power of appointment is “general” if it places no restrictions on who the distributees may be. A power is “limited” or “special” if it limits the eventual distributee.
Power of attorney: A written legal document that gives an individual the authority to act for another. If the authority is to act for the principal in all matters, it is a general power of attorney. If the authority granted is limited to certain specified things, it is a special power of attorney. If the authority granted survives the disability of the principal it is a durable power of attorney.
Primary beneficiary: Beneficiary of a life insurance policy who is first entitled to receive the policy proceeds on the insured’s death.
Probate: The process of determining if the deceased person left a valid will and admitting that will to probate. When a will is “admitted to probate” it means that the probate register or the probate judge has signed a paper that says the will is admitted to probate. The paper the probate register signs is called a “register’s statement” and the paper that the judge signs is called an “order.”
Probate register: An employee of the probate court authorized to perform certain acts such as the admission of a will to probate in an informal proceeding.
Proceeding: Involves the court in some type of activity such as the admission of a will to probate in an informal proceeding conducted by the probate register (this may be done by mail and does not involve a court hearing) or in a formal proceeding conducted by the judge in a hearing in the courtroom after proper notice to interested persons.
Qualified disclaimer: A written refusal to accept property from a decedent (by will, by the laws of descent and distribution, by contractual provision, or by beneficiary designation), made within nine months of the decedent’s date of death and delivered to the holder of legal title in such property. This is a common way to transfer property without paying a gift tax.
Qualified domestic trust: A trust arrangement which allows property transferred to a surviving spouse who is not a U.S. citizen to qualify for a special exclusion in lieu of the regular marital deduction; and which ensures that, at the death of the surviving spouse who is not a United States citizen, the assets placed in such a trust will incur federal estate taxation since the tax was avoided at the first spouse’s death
Qualified plan: Plans that qualify for favorable tax treatment under the Internal Revenue Code, and are subject to restrictive rules and extensive regulations. Qualified plans are secured by a trust, as opposed to a nonqualified plan.
Qualified terminable interest property: Property that, were it not “qualified,” would not qualify for the marital deduction in the decedent’s estate. Because the qualified interest left to the surviving spouse terminates at his or her death (and there are no other rights that would result in inclusion of that property in the surviving spouse’s gross estate). QTIP does qualify for the marital deduction in the decedent’s estate and will be included in the surviving spouse’s gross estate, provided the proper election is made by the decedent’s personal representative.
Rabbi Trust: A trust, owned by the company that holds assets to help meet non-qualified benefit payments. Rabbi trusts are taxable trusts, and trust assets must be available to corporate creditors in the event of a bankruptcy.
Revocable living trust: A living trust or inter vivos trust that can be amended and revoked, usually by the person who established the trust; the trust may become irrevocable when the one who can amend or revoke the trust dies or becomes incompetent.
Settlor: A person who established a living trust.
Special-use valuation: Pursuant to Code Section 2032A, special-use valuation provides that the “highest and best use” value may be reduced to an appraised “special use” in the gross estate up to $900,000. This applies to real property used in a farming operation or a trade or business that meets certain requirements, and where certain pre-death qualifications are met and post-death commitments are made.
Sound mind: The testator possesses sound mind for the purposes of making a will if he or she: (1) understands the nature of the act of making a will or codicil thereto, (2) knows the extent and character of the property subject to the will, (3) knows and understands the proposed disposition of that property, and (4) knows the natural objects of his or her bounty (i.e. his or her heirs). Whether the testator was of sound mind is tested (determined) by the state of the testator’s mind at the time the will or codicil is executed (written and signed) and varies by state.
Supervised probate: A proceeding for the administration of a deceased estate in which there is considerable court involvement; papers that have to be filed with the court and various types of hearings before the probate judge
Tenants in common: A form of asset ownership in which two or more persons have an undivided interest in the asset and the ownership shares are not required to be equal
Testamentary trust: A trust that is part of a person’s will.
Testate: Refers to dying with a will.
Testator: A person who makes a will.
Trust: An arrangement, usually established by a written document, to provide for the management and disposition of assets. It normally involves three parties: the person who establishes the trust (sometimes called a donor, grantor, settlor, or trustor), a trustee, and one or more beneficiaries.
Trust declaration [trust instrument]: A document defining the nature and duration of the trust.
Trustee: An adult individual or financial institution that is designated to be responsible for the administration of a trust. There may be more than one trustee (co-trustees), and an individual and a financial institution may serve as co-trustees.
Trustor: A settlor.
Uniform gifts [Transfers] to minors act [UGMA or UTMA]: A method to hold property for the benefit of a minor, which is similar to a trust but the rules are governed by state law.
Will: A written document which disposes of one’s property at death. The will also is used to nominate personal representatives. It may also be used to express burial and funeral instructions, make anatomical gifts, and designate a guardian and conservator for a minor child or a legally incapacitated adult.
Conclusion
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