Probate Terms & Definitions

Abstract – An abstract is a summary that contains only the pertinent points of a longer text. Sometimes abstracts are compiled into bound books or volumes.

Accounts – Accounts are the reports of administrators, executors, guardians, trustees, and conservators of transactions for the estate.

Administration – Administration is the authority given to the administrator to settle the estate. Also refers to the probate process for intestate estates.

Administrator (-trix) – When no will exists (intestate), the court appoints an administrator (male) or administratrix (female) to handle the estate proceedings.

Administrator cum testamento annexo (administrator c.t.a.) – The court appoints an administrator when no executor is named in the will or the executor is unable to serve.

Administrator de bonis non (administrator d.b.n.) – A successor administrator appointed by the court to handle the remainder of the affairs of the estate (such as upon the death of the administrator).

Affidavit – An affidavit is a legal written statement made under oath.

Affinity – Affinity is a relationship by marriage.

Agnate – Agnate is a relationship through the males of the family.

Appearance docket – The appearance docket is an index of all cases coming into a court.

Appraisal – The appraisal is an itemized valuation of real or personal property.

Appraiser – An appraiser is an impartial person who estimates the value of the personal or real property of the estate.

Attest – To attest is to witness, offer testimony, or to certify that a copy is genuine.

Beneficiary – A beneficiary is one who will receive benefit from the estate.

Bequeath – Bequeath is the act of assigning personal property in a will. (See testament.)

Bequest – A bequest is the personal property assigned in a will.

Bond – In most probate cases, the court required the administrator, (and sometimes the executor, guardian, appraiser, and trustee) to post a bond to ensure that he would properly complete his duties. The bond required that a fee be paid to the court if duties weren’t adequately performed. One or more persons were required to co-sign the bond as “sureties.”

Bondsman – A bondsman is a person who pledges a sum of money as bond in another’s behalf.

Calendar – A calendar is list or schedule of cases to be presented before the court.

Case file – The case file is all of the various papers that have been created throughout the probate process. These are bound together and archived by case number. (See estate file or probate estate papers.)

Claims – Claims are the petitions, registers, accounts, or appeals files with the court.

Codicil – A codicil is an addendum to a will. (See will.)

Committee – A committee is a group of people charged with specific duties for a limited time.

Common law – Common law refers to the body of unwritten law developed in England based on custom and precedent, rather than by statute.

Community property – Based on Spanish custom, all real and personal property acquired by a couple after marriage, belongs to both husband and wife and is called community property. Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, and Washington are community property states.

Consanguinity – Consanguinity is a close relation.

Conjoint will – A conjoint will is made and signed by two or more persons together. (See joint will or will.)

Conservator – A conservator is a person appointed to manage the affairs of one considered incompetent; protector.

Contest – To contest a will means to dispute the will.

Coverture – Coverture refers to the status of married women under English common law.

Curtesy – Based on English common law, curtesy is a husband’s right, upon the death of his wife, to a life estate in land that the wife owned while living, and only applicable if a child had been born to the couple.

Decedent – The decedent is the person who is deceased.

Decree – A decree is the judicial decision of the court. In probate, decrees usually involve heirship or distribution.

Degree of relationship – This is a legal term referring to the degree (generations) of two persons who descend from a common ancestor but not one from the other.

Devise – Devise is to transfer real property through a will.

Devisee – A devisee is a person receiving real property through a will.

Devisor – The devisor is the person transferring real property through a will; testator.

Distributions – Distributions refer to the manner in which the deceased’s possessions are allocated.

Divisions – Divisions are records in the probate process. These might include commission reports, settlements, decrees of distribution, dower rights, courtesy rights, awards, private disbursement, ledgers, guardians’ final report, probate decrees, certificates of devise, assignments of real estate, orders of distribution, or decrees of heirship. When the distribution was completed and payments to the creditors and heirs made, the executor or administrator presented to the court a record or decree of distribution and settlement. This document listed the beneficiaries of the estate and the property each received. This is often the most helpful source of family information in an intestate case.

Docket – A docket is a list or schedule of cases to be presented before the court.

Dower rights – The dower rights are the rights that a non-owner spouse has in the real property.

Entail – To entail is to limit the inheritance of real property to only those in a specified line of descent, such as to the oldest male in each generation.

Escheat – In cases where no one is entitled to inherit, property reverts to the state, or escheats.

Estate – The estate is the real and personal property left by the deceased.

Estate file – The estate file contains information about the property left by the deceased to be dispersed between the surviving heirs. (See case file or probate estate papers.)

Executor (-trix) – The person (executor = male; executrix = female) who has been named by the testator of the will to manage the estate.

Feme sole – Feme sole refers to a single woman.

Fiduciary – The fiduciary is a person who is holding assets for another. In probate, this might be the executor, administrator, guardian, or a trustee.

Final account – The final account is the final accounting of the estate and how it was distributed. (See settlement.)

Guardian – A guardian is the person appointed by the court to manage the affairs of a minor or someone incapable of handling his or her own affairs.

Guardianship – Guardianship is the court appointment of an adult to take care of the child or the child’s property.

Heir – An heir is a person who inherits property upon the death of the owner.

Holographic will – A holographic will is entirely in the testator’s handwriting. If someone else writes on it, it is invalid. This will is not witnessed. (See will.)

Imprimis – Imprimis is Latin, meaning “in the first place.”

Index – An index is an organized summary of a set of records or a book that allows a person to find a specific item within the set of records or book.

Infant – Infant minor not yet of legal age, not necessarily a young child.

Intestate – Intestate is when an individual dies without leaving a will.

Inventory – An inventory is an itemized list of property in the estate and an appraisal of its value. Inventory documents may include real estate, personal property, guardians, conservators, partnerships, minors’ estates, appraisals, appraisers warrants, and reports. In intestate cases the inventory is very important as it may describe the land, tools, slaves, and other personal property at the time of death. These records are sometimes transcribed in the will books or in separate volumes, but the originals may be in the probate packet.

Issue – Issue refers to offspring, biological children, or legitimate descendants.

Joint will – A joint will is made and signed by two or more persons together. (See conjoint will or will.)

Legacy – A legacy is a gift (bequest) of real or personal property by way of a will.

Legatee – A legatee is a person receiving real or personal property by way of a will.

Legator – The legator is the person giving personal property by way of a will. (See devisor or testator.)

Letters of administration – Letters of Administration refers to the formal document from the court granting authority to handle the affairs of the estate.

Letters of guardianship – Letters of guardianship refers to the court order appointing a guardian to handle the affairs of a minor or a person deemed incompetent.

Letters testamentary – Letters testamentary refers to the document approving the appointment of an executor and authorizing that person to administer the estate.

Lineal – Lineal means being in a direct line from a male or female ancestor.

Locus sigilli (L.S.) – Locus sigilli is Latin, meaning “in place of the seal.”

Loose papers – Loose papers are a collection of various papers, separate from book records.

Majority – When a person reaches majority, he or she is of full legal age.

Minor – A minor is a person who has not yet reached full legal age.

Minutes – Minutes are the notes made of the probate court proceedings.

Mystic will – The mystic will is from French tradition (Louisiana). A person goes to a notary (like a lawyer), and writes the will in the presence of two to three witnesses and the notary. The person then puts the will in an envelope and seals it. The witnesses don’t sign the will, but they do sign that he put it in the envelope. (See will.)

Next friend – A person acting in behalf of a minor or one unable to represent himself may be referred to as a next friend until the court appoints a guardian or conservator.

Notices – Notices are published so that creditors, and others with an interest in the estate, have an opportunity to collect debts or contact the legal representatives. (See publications.)

Nuncupative will – A nuncupative will is spoken in the presence of witnesses; not valid in some states. (See will.)

Parcener – A parcener is a joint heir.

Partition – Partition is to divide into parts or shares.

Per capita – Per capita is the method of distributing an estate in which each person receives an equal share.

Per stirpes – The method of distributing an estate in which a group of people (such as the grandchildren whose parent is deceased) receive a share as if they were one person.

Petition – A petition is an application to a court requesting the right to settle an estate. The petition document from the heirs generally begins the legal probate process. The petition was filed with the court that served the area where the deceased owned property. Additional petitions may be filed in other localities where he owned property or resided. The petition may name the heirs of the deceased, their relationship, and sometimes their residence. Heirs and other interested parties can petition the court throughout the probate process. The petition documents include letters testamentary, letters of administration, guardianship, appointment or change of guardian, redress for misuse or waste of property, list of heirs, and renunciation.

Primogeniture – Primogeniture is when the first-born son inherits the intestate estate.This practice was based on English common law.

Probate – Probate relates to all matters and proceedings pertaining to the administration of estates, whether there is a will (testate) or not (intestate).

Probate estate papers – All of the various papers that have been created throughout the probate process are bound together and archived by case number. (See case file or estate file.)

Probate fees – Probate fees refer to the compensation paid to the attorney in a probate case.

Probate packet – Probate packet is the case files placed together in an envelope or tied together with a string.

Prove – To prove a will means the evidentiary process validating that will.

Publications – Notices are published so that creditors, and others with an interest in the estate, have an opportunity to collect debts or contact the legal representatives. They include announcements, advertisements, notices to heirs, notices of sales, and notices to creditors. Some state laws require the publications in specified newspapers for two or three weeks. Newspaper clippings may be in the probate packet as evidence of compliance with the law. (See notices.)

Receipt – A receipt is a written statement that funds, property, or legal documents have been received.

Register of Wills – The Register of Wills is the name of the office with probate jurisdiction in some localities.

Register – A register is a bound book in which official matters are recorded by the court clerk.

Releases – Releases are court documents that release an individual from an obligation. In probate cases, releases might come from the court, executors, administrators, trustees, guardians, heirs, and conservators.

Relict – A relict is a widow or widower.

Relinquishment – Relinquishment is to waive one’s rights. (See renunciation.)

Renunciation – Renunciation is to waive one’s rights. (See relinquishment.)

Settlements – Settlements are the final accounting of the estate and how it was distributed. (See final account.)

Sine prole (s.p.) – Sine prole is Latin, meaning “without offspring.”

Succession – Succession is the process of settling an estate based on Spanish community property law, followed especially in Louisiana.

Successor administrator (-trix) – A successor administrator is one appointed by the court to handle the remainder of the affairs of the estate (such as upon the death of the administrator). (See administrator de bonis non.)

Surety – A surety is a person who agrees to be liable for another’s debts and obligations in case of default.

Surrogate – The Surrogate is the court officer with jurisdiction over probate and guardianship matters in New Jersey and New York.

Testament – Technically, the testament is the document in which the testator distributes (bequeaths) personal property. This term is often dropped from “last will and testament.”

Testamentary – Testamentary items or matters means that they pertain to a will.

Testate – Testate is when an individual dies having left a will.

Testator (-trix) – The testator (male) or testatrix (female) is the person making the will or testament.

Transcript – A transcript is an exact handwritten, typed, or printed copy of a document or set of records.

Trustee – A trustee is a person who holds legal title to property for the benefit of someone else.

Unofficious will – An unofficious will is one made in disregard to natural obligations of inheritance. (See will.)

Unsolemn will – A unsolemn will is one in which no executor is named. An administrator will be appointed by the court. (See will.)

Videlicet (viz.) – Videlicet is Latin, meaning “namely.”

Widow’s allowance – State statute governs the share of real or personal property which a widow can claim from her husband’s estate. Often this supersedes other claims and debts to the estate.

Widow’s election – A widow’s election is the widow’s right to either accept what was granted to her by her husband’s will or to accept the share granted to her by state statute.

Will – Technically, a will is the document in which the testator distributes (devises) real property. This term is often used in place of “last will and testament.” (See article on Wills for more information.) (See also: codicil, conjoint will, holographic will, joint will, nuncupative will, mystic will, unofficious will, or unsolemn will.)

Witness – A witness is a person who attests to actions or events personally seen.