Understanding the language of law

Article from Stephen Ward, Counsil for Licenced Conveyancers

The death of a loved one is stressful enough without having to spend time deciphering what exactly your lawyer is telling you about handling their affairs. However well they communicate with you, there are certain terms that all professionals involved in the process will use so frequently that they may forget to tell you what they mean. Here is our plain English guide to the most common terms.

Probate

This is a legal process through which a court will grant people authority to deal with a deceased person’s property, finances and personal belongings (their assets, collectively called their “estate”). Probate is not needed if the person had no assets, or if only a small amount of money is at stake.

Otherwise, a deceased person’s estate cannot legally be dealt with and distributed without a “grant of representation” – this covers either a grant of probate (to executors) or a grant of letters of administration (to administrators).

Will

A legal document in which a person (known as the testator/testatrix) states how they want their estate to be distributed and other affairs handled after their death.

Executor

Where there is a will, the testator names an executor/executrix (often there is more than one) to handle the probate and they will apply for it.

Administrator

If there isn’t a will, or the named executor does not want to take on the task, an administrator will apply for probate. This will usually be the deceased person’s spouse, civil partner or child.

Personal representative

An overarching term for both executors and administrators. They usually instruct a specialist lawyer to help them with the process.

Beneficiary

Someone who receives money, property or some other type of asset from the estate, which itself is called an “inheritance”, a “legacy” or a “bequest”. The will sets out who gets what.

Some have particular names: a “pecuniary legacy” is a gift of money, a “specific bequest” is a gift of a particular item, like a piece of jewellery, while a “contingent legacy” is a gift subject to conditions.

Intestacy

Where there is no will, the deceased has died “intestate”. Under the rules of intestacy, the estate is distributed to members of deceased’s family in a pre-determined order of entitlement.

Ultimately, if a person dies intestate and no relatives can be found, their estate passes to the Crown (effectively the Government), in a process called bona vacantia. Dying intestate makes the administration of the process of the division of the estate slower and more complex. It is estimated that more than fifty percent of all people do not have a will.

Probate genealogists

Better known as ‘heir hunters’ because of daytime TV programmes, these are people who identify and trace relatives and beneficiaries to estates, sometimes at the request of a personal representatives but also taking it upon themselves to try and find potential beneficiaries for estates that would otherwise be bona vacantia. They charge either a fee or a percentage of the legacy.

Estate administration

This is the process by which the executor/administrator deals with all of the deceased person’s affairs. Before distributing their estate to the beneficiaries, they need to settle any debts, pay inheritance tax (payable if the estate’s value is above a certain amount), close accounts (like bank accounts) and generally notify those who need to know that the person has died.

Trust

A trust can be used by the living or created by a will. It allows assets such as money and property to be managed by appointed third parties (called “trustees”) for the benefit of others (the beneficiaries).

The “trust deed” explains how the person who sets up the trust (the “settlor”) wants the assets to be used. For example, the trust could own property but give the income received from it to beneficiaries, or it could invest the money until a child reaches the age of 21, at which point they receive it all.

Trusts can play an important role in effective “estate planning”, which is when a person (usually with professional advice) organises their estate – within the law – in such a way as to minimise the tax ultimately payable after death.

Remember!

Whatever role you have in the probate process, the important thing is to make sure you understand what you are signing or being told. If you don’t understand, be sure to ask your lawyer to explain it for you – it is their job to help you. You can find a Probate Practitioner regulated by the CLC, the Regulator of Property and Probate Lawyers here.