Administrator: If there is no will, or if an executor is not named in the will, then the court must appoint someone to handle the estate. This is the Administrator.
Beneficiary: A person who inherits when there is a will, also known as an heir.
Conservator: A person who has the court-appointed fiduciary responsibility for the care of another adult that doesn’t have capacity to care for themselves.
Conservatee: The person whose care is provided for under a conservatorship.
Conservatorship: A court proceeding wherein a judge appoints a bondable, responsible person (Conservator) to care for another person (Conservatee) who cannot care for themselves or their finances. Real Property sold in a Conservatorship always requires court confirmation.
Court Confirmation: Going to court to confirm the sale of the real property allows the estate to obtain a higher price for the property. After the administrator accepts an offer, the attorney petitions the probate court to confirm the sale, that is, “to get the court’s approval”. The Court atmosphere is like an auction. During the court proceedings, the judge will ask if anyone in the courtroom would like to make an overbid on the property; sometimes there are several potential buyers who would increase the originally accepted bid.
Decedent: The deceased person, in this case, to whom the probate refers.
Dual Agency: When two agents from the same brokerage represent both buyer and seller. Each party has their own agent though both agents work for the same broker. A dual agency is also created when a sole agent represents both the buyer and seller.
Estate: Real and personal property left by decedent.
Executor: The executor is the person named in the decedent’s Will to manage the decedent’s affairs once he/she is appointed by the Probate Court.
Fiduciary: A person holding a position of trust; executors, administrators, agents, attorneys, and trustees.
Heggstad Petition: Is used when there is a real property or asset that is mislabeled from a deceased person’s Living Trust. This happens when the title of real property or other asset is not legally or formally transferred to the Living Trust.
Independent Administration of Estates Act (IAEA): The IAEA was enacted to allow personal representatives of probate estates to handle appropriate routine actions, such as sales of real and personal property, without court approval. While court supervision is not required for certain acts under the IAEA, the executor/administrator is required to notify anyone who would be affected by an independent action by providing them with an “Advice of Proposed Action” no less than 15 days prior to taking the action.
Intestate: Not leaving a valid will upon death. Often when there is not a will, the sale of the decedent’s real property requires court confirmation.
Intestate Succession: The order of who inherits the property when the decedent does not have a will.
Inventory and Appraisement: A detailed listing of all property owned by the decedent, both real and personal, and specification of all debts owed by the decedent, both real and personal, as much as they are known to the executor/administrator. The executor/administrator is responsible for appraising the fair market value of currency, deposits with financial institutions, proceeds from insurance policies, and lump-sum payments from retirement plans which are payable upon death. All other property is appraised by a court-appointed Probate Referee, unless the executor/administrator seeks, and the court waives, such appointment.
Issuance Of Letters: After the executor or administrator has taken his or her oath and has given the bond if required, the Clerk of the Court (under the seal of the court) will issue Letters Testamentary or Letters of Administration. These “letters” are the evidence of the executor/administrator’s qualification and authority to act in his/her representative capacity.
Joint Tenancy: A method for holding title to real property and other assets whereby on the death of one of the joint tenants, that person’s interest passes to the other surviving joint tenant(s). This process avoids probate but may not carry out the intent of the dying joint tenant, if he/she desired the interest in the joint tenancy property to others, other than the surviving joint tenants(s).
Letters of Administration: Written authority by a court giving permission to administer.
Letters Testamentary: Letters issued by a court empowering an executor of a will to act.
Notice of Proposed Action: Must be given to the heirs when dealing with the sale of real property in a probate. The notice must be writing and sent to the interested persons, the heirs or beneficiaries or anyone or any entity requesting special notice of the probate proceeding. The heirs have 15 days to object to the terms laid out in the NOPA.
Notice To Creditors: Publication of the “Petition for Letters” in a newspaper of general circulation constitutes notice to creditors of the decedent. Within four months from the issuance of Letters Testamentary or Letters of Administration, all persons making claims against the decedent are required to submit them to the office of the Clerk of the Court, the executor or the administrator.
Personal Representative (Administrator or Executor): The person responsible for overseeing the distribution of the estate.
Pour-Over Will: A Will which directs that all the estate flows into an already existing trust. This is a safety net for those asses which were not placed into the trust. These assets may have to go through the Probate Process via Heggstad Petition but eventually will be distributed per the terms of the trust.
Power of Sale: The significance of the “Power of Sale” contained in the will is that the executor/administrator can proceed to sell property without giving notice (publication) and does not have to show the court the necessity for the sale or its benefit or advantage to the estate. However, an “Advise of Proposed Action” will be necessary.
Probate: The legal process through which a court of law makes sure that when a person dies his/her debts are paid and his/her properties are distributed according to the will. It is not always necessary to have probate occur. A property can be transferred by joint tenancy or as a community property, for instance. If a person does not have a Will, then the estate will be probated according to probate laws of the state.
Probate Referee: Before real property can be sold through probate, it must be appraised. This is done by a court appointed probate referee. Their fee is 1/10th of 1% of the appraised value.
Real Property: The term used to refer to real estate in probate and trust sales
Revocable Trust: A trust that takes effect while the Settlor(s) is still alive. This trust can be revoked and amended during the lifetime of the Settlor(s). This type of trust is sometimes referred to as an Inter Vivos Trust. The Living Trust does not go through probate.
Settlor: The person who sets up the trust. This person is also known as the Grantor or Trustor.
Testamentary Trust: This trust begins after the death of the person. The Testamentary Trust is part of a Will and goes through the probate process. The heirs will not receive the income or assets of this trust until the probate process is complete.
Testate: Leaving a will upon death.
Testator: Commonly known as the will writer.
Trust: A legal document by which the Settlor(s) places ownership of property in the name of a Trustee, to be held for the use and benefit of the beneficiary. In many cases the same persons fill all three roles when the Revocable Living Trust is established.
Will: A legal document outlining a person’s last wishes on how he/she wants their estate to be distributed after death.