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Glossary of Terms and Phrases

 

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The following glossary is intended to provide you with a description of certain legal terms and phrases that are associated with Estate Planning. These definitions are provided to help you understand the language you may see in your legal documents. If you have a question about a term that you do not see defined here, please feel free to send an email with your question or request a copy of Rainbow Law's Estate Planning Workbook

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  Administrator (See Personal Representative )

Attestation Clause
A clause found in a will where the witness certifies that the document has been signed in his or her presence.

Attorney in Fact
The person who is given the authority to make decisions on behalf of a person signing a Power of Attorney, who is referred to as the "Principal". (See Durable Power of Attorney)

Beneficiary

A person who is, or will be, a recipient of benefits from a will, an estate, a trust, a retirement plan, insurance policy, etc.

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Cash Value Life Insurance
A policy that accumulates internal policy values because the insurer charges a premium during the earlier years of the contract that is considerably higher than mortality costs of the contract during those years. Part of this excess premium payment accumulates as the policy's cash value which, prior to the death of the insured, is available to the owner.

Charitable Deduction
A deduction allowed on the federal estate and gift tax return for property bequeathed or gifted to a qualified charity.

Codicil
A separate written document that amends a prior will. It is executed if the testator wishes to change or add to the will.

Community Property
Property which is acquired during marriage or (in a state where a non-marital ‘cohabitation’ is legally recognized) during the period of time a couple are living together. Generally speaking, community property will be divided equally in the event of death or divorce. Assets belonging to partners who are legally recognized as a couple and who live in a ‘community property state’ will be presumed to be community property unless it can be proved to be owned individually and outside of the partnership. Inherited property which is held in trust will not be regarded as community property.

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Corpus (See Principal)

Current Beneficiary
A trust beneficiary who may currently receive trust distributions. (See also Remainder Beneficiary.)

Decedent
A person who has died.

Declaration to Physicians (See Living Will)

Disclaimer
An unqualified refusal to accept a gift or bequest. If a beneficiary makes a valid disclaimer which meets the requirements of both local law and Internal Revenue Code, the assets which have been disclaimed will not be includable in the disclaimant's taxable estate.

Donee
One to whom a gift or bequest is given.

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Donor
(1) One whom makes a gift or bequest; (2) See GRANTOR.

Durable Power of Attorney for Health Care
A document which grants to the attorney-in-fact the power to make medical decisions on behalf of the principal. It is "durable" in that document remains in effect in the event of the principal's incompetency. Also called Medical Power of Attorney. (See also Attorney in Fact; Principal.)

Durable Power of Attorney for Finances and Property
A document which grants the attorney-in-fact the power to make decisions concerning the finances and property of the principal. It is "durable" in that document remains in effect in the event of the principal's incompetency. Also called Financial Power of Attorney. (See also Attorney in Fact; Principal)

Estate Tax
A tax on the right to transfer property after death to the decedent's heirs or other beneficiaries.

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Executor
(See Personal Representative.)

Fiduciary
A person or institution which manages the assets on behalf of another, including a Personal Representative, Trustee and a Guardians.

Grantor
The person who creates a trust (sometimes also referred to as the "Donor" or the " Settlor").

Grantor Trust (See Living Revocable Trust)
A living trust who the assets of which are regarded as still being owned by the Grantor for income tax purposes. As a result, the income generated by trust assets is taxable to the Grantor, not to the trust or its beneficiaries.

Gross Estate
Refers to property which is taxable at death (i.e. property owned by the decedent at death, property transferred by the decedent but over which the decedent retained an interest or control, and certain amounts transferred within three years of death). NOTE: A person's gross estate includes both probate and non-probate property.

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Guardian
An individual appointed (by you or a court) to be responsible for the person or property, or both, of a minor child or an incompetent adult.

Health Care Agent
Person appointed to make health care decisions on behalf of the principal of a Health Care Power of Attorney. (See also Health Care Power of Attorney; Principal.)

Heirs-at-Law
The person or persons who are entitled to receive an individual's assets under state law if the decedent dies intestate. Typically, this will be the decedent's then-living relatives (spouse, children, parents, siblings, nieces and nephews, etc.). (See also Intestate.)

Income Beneficiary
The person who will receive income distributions from a trust for a specified period of time (such as the beneficiary's life). (See also, Remaindermen.)

Individual Property (See Separate Property.)

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Inter Vivos Trust
A trust created by agreement during life, as opposed to a testamentary trust created by a will. Such a trust can be used to hold legal title to assets during a person's lifetime and thereby shelter those assets from probate at the person's death.

Intestate
The term used to refer to a person who has died leaving probate property not disposed of by a valid will, or otherwise.

Issue
A person's direct descendants, or offspring, including children, grandchildren, great grandchildren, and the like. Also called descendants.

Joint Interest (See Joint Tenancy)

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Joint Tenancy
A form of equal, undivided ownership in property that, upon death of one owner, automatically passes to the surviving owner(s). Also called joint interest.

Lapse
(1) The result when a beneficiary named in a will or trust fails to survive the testator or Grantor. (2) A Power of Appointment is said to lapse if the holder does not exercise it within the permitted period.

Living Trust
A trust created by agreement during life, as opposed to a testamentary trust created by a Will. Such a trust can be used to hold assets during a person's lifetime and thereby shelter those assets from probate at the person's death. Also called an inter vivos trust.

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Living Will
A document which directs that artificial life support should not be used if a person is suffering from a terminal illness which has resulted in death being imminent or the person is in a persistent vegetative state.

Pecuniary Bequest
A specific bequest of a specified dollar amount. (See also Specific Bequest.)

Personal Representative
The person appointed by the probate court to represent, manage and distribute assets belonging to a decedent which are subject to probate. Also known as the Administrator or Executor.

Per Stirpes
(See Right of Representation.) 
The phrase "per stirpes" will protect the interests of your beneficiary's child or children. If your distribution only names a beneficiary without the 'per stirpes' language, and your beneficiary dies with children, those children would be disinherited. With the language "per stirpes," the children of your beneficiary will stand in the place of their deceased parent.

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Pour Over Will
A will that provides for probate assets to be distributed to a living trust upon the testator's death.

Power of Appointment
The term used to refer to authority given to a trust beneficiary to designate how assets which remain in the trust are to be distributed, typically after the beneficiary's death. A limited power of appointment may only be exercised in favor of members of a specified class of permissible appointees.

Power of Attorney
A document executed by one person, called the principal, authorizing another person, called the attorney-in-fact, to perform designated acts on behalf of the principal. (See also Durable Power of Attorney.)

Principal
(1) The term which is used to refer to assets which have been placed in trust, including appreciation in value of those assets (but not the income generated thereby). Also called corpus. (2) A person who signs a power of attorney.

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Probate
Court supervised proceedings whereby assets in the name of a decedent and whose transfer is governed by the decedent's will (or by the laws of intestacy if the decedent has no will) are legally transferred to the decedent's heirs or beneficiaries.

Probate Estate
All of the decedent's property passing to others via probate. This includes all property held in the name of the decedent, excluding property whose distributions directed by a Marital Property Agreement, property held jointly with another, survivorship marital property and property passing by way of beneficiary designation.

Rule Against Perpetuities
A common law principle invalidating a contingent bequest if the contingent interest remains in effect for prohibitively long period of time.

Remainder Beneficiary
A trust beneficiary who will become a current beneficiary after a specific event (i.e. after another beneficiary dies, the expiration of a term of years, etc.) (See also Current Beneficiary.)

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Remaindermen
The persons who will receive a beneficial interest in a trust after the death of the income beneficiary or beneficiaries.

Right of Representation
The principle upon which the issue of a deceased person inherits the share of an estate that would have been inherited by their immediate ancestor, if still living. Also referred to as "per stirpes".

S Corporation
A corporation for which an election has been made to have corporate income taxed directly to the shareholders.

Settlor (See Grantor and Donor.)

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Separate Property
Property which belongs to an individual who resides in a community property state or has created, by contract, a communal living arrangement.   Separate property is property that was owned prior to a marriage or communal living arrangement.  Separate property may also refer to property received after a marriage or the signing of a living together agreement or property obtained by gift or inheritance. Separate property will be distributed as the owner directs at death, and does not necessarily have to be given to a surviving spouse or partner. Also known as individual property.

Situs
The term used to refer to the state whose laws govern the interpretation, administration, or both, of a trust.

Specific Bequest
A gift of a particular item of money or property to a designated individual or institution.

Spendthrift Clause
A clause in a trust that restricts the beneficiary from transferring any of his or her beneficial interests in a trust to creditors. For example, a typical spendthrift clause would not permit the beneficiary to pledge his or her beneficial interest in the trust as collateral against a loan. A spendthrift clause will therefore prevent the creditors of a trust beneficiary from filing a lien against the beneficiary's interest in the trust corpus.

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Tangible Personal Property
An individual's personal belongings such as furniture, clothing, jewelry and the like.

Taxable Estate
In federal estate tax law, the gross estate reduced by total deductions. (See also Gross Estate.)

Taxable Gifts
This refers to the total gifts made in a given year reduced by total deductions and exclusions.

Tenants-in-Common
A form of joint ownership where two or more parties own an undivided interest in property. Unlike joint tenancy, however, at death a deceased party's interest does not automatically pass to the survivor(s).

Term Life Insurance
A type of life insurance policy that has little or no value prior to the death of the insured because the premium charged simply buys pure mortality protection. If the insured dies while the policy is in effect, the company will pay the face value; otherwise, it will pay nothing. A large majority of such policies expire before the insured person dies because of the ever-increasing premiums associated therewith.

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Testator
A male individual who executes (signs) a will.

Testatrix
A female individual who executes (signs) a will.

Trust
A separate legal entity which can be created either during life or after death to hold property on behalf of individuals referred to as the trust beneficiaries.

Trustee
The person or bank who is responsible to carry out the provisions of the trust agreement. The Trustee typically holds legal title to the trust assets, distributes those assets to the beneficiaries in accordance with the trust agreement, and is responsible for the investment of the trust assets.

Trust Funding
The process of re-titling assets into the name of a living trust.

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Ultimate Takers
Persons or institutions who are entitled to receive an individual's assets if all other previously named beneficiaries are deceased. Also known as Takers in Default.

Whole Life Insurance (See Cash Value Life Insurance)

Will
A written document which is executed in accordance with the formalities required by state law that disposes of a person's probate property at death.

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