Legal Terms

Administration: Where there is no valid will, a Surrogate Court’s proceeding must be brought by the relatives of the decedent or the Public Administrator to appoint an administrator and to notify all relatives of the existence of the estate.

Administrator: If there is no will, the person appointed by the Surrogate’s Court to administer the probate estate of the deceased person.

Agent: The person named in a power of attorney to act on the principal’s behalf. Sometimes called an attorney-in-fact.

Codicil: An amendment to a will.

Elder Law: The field of law principally involved with estate planning while the principal is living for the purpose of maximizing asset protection, long-term care issues/benefits and Medicaid planning.

Estate Administration: Sorting out what happens to a person’s assets after the person dies.

Estate tax: A federal and state tax on assets passing to others when a person dies. No federal tax is due until the giver has used up his or her estate tax exemption amount (currently $2,000,000).

Executor: The person nominated in the will and approved by the Surrogate’s Court; whose job is to sort out the probate estate, deal with debts, and distribute assets. Sometimes called the personal representative.

Gift tax: A tax on gifts made while the giver is alive. No tax is due until the giver has used up his or her lifetime gift tax exemption amount (currently $1,000,000).

Grantor: The person creating and signing a trust. Sometimes called the Settler or Donor.

Guardianship: A court proceeding in which a judge names a person or organization (the guardian) to take control of the affairs of an incapacitated person and to act on his/her behalf.

Health Care Proxy: A legal document in which a person names an agent to make medical/health care decisions on his/her behalf should he/she become incapacitated and cannot act for himself/herself.

Holographic will: A will where all material provisions are in the testator’s handwriting.

Intestacy: When a person dies without a valid will.

Irrevocable Trust: A non-amendable estate tax planning document created during a person’s lifetime which removes assets from the grantor’s estate; the grantor should not act as trustee and must relinquish control over the trust assets to the trustee(s).

Kinship proceeding: Surrogate’s Court proceeding to determine who are the heirs entitled to share in the deceased person’s estate.

Living Will: A document by which a person declares that they do not desire life-sustaining treatment if there is no hope of recovery.

Medicaid: A combined federal and state program that pays for medical and custodial care services for people whose assets are below financial limits ($4,150 in 2006 for NYS).

Medicare: A federal program that provides health insurance for individuals who have certain disabilities or are 65 years and older.

Pour-over will: A simplified will that directs that all assets be transferred at death (pour over) to the trustees of that person’s trust.

Power of attorney: A legal document in which a person (the Principal) names one or more agents to manage their affairs during their life and on their behalf. The usual intent is that it is only to be used if the person becomes incapacitated.

Principal: The person who signs a living will or power of attorney.

Probate: A Surrogate’s Court proceeding brought by the executors named in the will, to have the legality of the will established to pass the probate estate of a deceased person to his or her heirs.

Probate avoidance: An arrangement (beneficiary naming, joint tenancy, pay-on-death account, etc.) used by a person during their lifetime that removes an asset from his or her probate estate.

Probate estate: All assets held in the name of a deceased person on the date of death that do not avoid probate.

Revocable Trust/Living Trust: An amendable estate planning document which removes assets from the probate estate, avoids probate, allows the grantor to act as trustee and beneficiary during life, and directs how the trust assets are to be distributed at death.

SSI (Supplemental Security Income): An income assistance program for people who are 65 years or older, blind or disabled, with low assets and low income.

Surrogate’s Court: The court having jurisdiction over all estates after the person dies, both testate and intestate.

Testator: The person who creates and signs a will.

Totten Trust: A bank account designation which allows the owner to name the beneficiary of the account upon death (a/k/a: In Trust For).

Trustee: The person named in a trust agreement or a will to administer, invest and distribute assets held in trust.

Will: An estate planning document which disposes of a person’s assets upon death and names the executor.