GLOSSARY OF
PROBATE TERMS
Understanding probate can feel overwhelming, especially when it comes to unfamiliar legal terms. This glossary is designed to help you easily understand the terms you may encounter during the probate process.
Accounting
A detailed financial report prepared by the Personal Representative showing all estate income, expenses, distributions, and remaining assets.
Administration
The legal process of managing and settling a deceased person's estate. Administration typically includes identifying assets, notifying creditors, paying debts and taxes, and distributing the remaining property to beneficiaries or heirs.
Affidavit
A written statement of facts that is signed under oath before a notary public or other authorized official. Affidavits are commonly used in probate proceedings to verify information submitted to the court.
Ancillary Administration
A probate proceeding opened in Florida when a person who lived in another state owned Florida real estate or other property requiring administration in Florida. (Discussed further here.)
Antilapse Statute
This is a state law that provides that property intended for a deceased beneficiary may pass to that beneficiary's heirs under certain circumstances. It's a way to ensure your intended beneficiaries receive their inheritance, even if they pass away before you do.
Assets
Everything owned by the decedent at death, including real estate, bank accounts, investments, business interests, vehicles, and personal belongings.
Attestation
The act of witnessing and signing a Will to verify that the testator properly executed it.
Augmented Estate
The augmented estate is used to calculate the share of an estate a surviving spouse may claim and is generally the sum of all the deceased spouse's property (minus exemptions and debts), the value of large gifts the decedent made shortly before death, and all of the surviving spouse's property. It's a way to ensure your spouse is provided for after your passing.
Basis (Tax Basis)
The value assigned to property for federal income tax purposes. Assets inherited from a deceased person often receive a step-up in basis to fair market value as of the date of death, potentially reducing future capital gains taxes.
Beneficiary
A person, trust, charity, or organization entitled to receive property from an estate.
Beneficiary Designation
A written instruction naming the person or entity that will receive a particular asset upon the owner's death. Common examples include life insurance policies, retirement accounts, and payable-on-death (POD) or transfer-on-death (TOD) accounts. Assets with valid beneficiary designations generally avoid probate.
Bequest
A gift made through a Will.
Bond (Fiduciary Bond)
Insurance that protects estate beneficiaries against financial loss caused by misconduct or negligence of the Personal Representative.
Capacity (Testamentary Capacity)
The legal ability to make a valid Will. Under Florida law, a person generally must understand:
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the nature of making a Will,
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the property they own,
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and the natural objects of their bounty.
Codicil
A legal document that amends or supplements an existing Will without replacing it entirely. A codicil must generally be executed with the same legal formalities required for a Will.
Commission
An order by a court for carrying out some task, eg: "To examine witnesses"; "To collect goods" (eg com. ad colligend.); "To make an inventory of goods".
Community Property
Property owned equally by married spouses under the laws of certain states. Florida is not a community property state, although Florida law allows married couples to establish a Florida Community Property Trust, which may provide certain tax benefits. (Discussed further here.)
Conservator
A person appointed by a court to manage the property of a missing or absent individual.
Florida Note: Florida generally uses guardianships rather than conservatorships. Conservatorships are relatively uncommon and are governed by Chapter 747, Florida Statutes.
Conservatorship
A court-supervised proceeding for managing the property of an absentee.
Contingent Beneficiary
Someone who inherits only if the primary beneficiary dies first or cannot receive the inheritance.
Creditor
A person or business owed money by the decedent.
Curator
A person temporarily appointed by the probate court to protect and preserve estate assets until a Personal Representative is appointed or another issue affecting estate administration is resolved.
Decedent
The person who has died.
Disclaimer
A written refusal to accept an inheritance or gift. When properly executed under Florida law, a disclaimer treats the beneficiary as though he or she predeceased the decedent, allowing the property to pass according to the Will, Trust, or Florida law.
Docket
The official list of filings and court activity in a probate case.
Domiciliary Estate
The primary probate proceeding opened in the state where the decedent was legally domiciled at death.
Elective Share
Florida law allows a surviving spouse to claim a statutory percentage of certain estate assets even if the Will leaves the spouse less.
Estate
Everything a person owns and owes at death.
Estate Tax
A tax imposed on the transfer of a person's estate at death. Florida does not impose a state estate tax. However, very large estates may be subject to the federal estate tax if they exceed the applicable federal exemption amount.
Ex Parte
A court proceeding involving only one party.
Executor
The individual named in a Will to administer the estate. In Florida, the legal title is Personal Representative, although many people still use the term "Executor."
Exempt Property
Certain assets protected for the surviving spouse or children under Florida law, including qualifying household furnishings and certain vehicles.
Family Allowance
A court-authorized payment from the estate for the support of the surviving spouse and certain dependent children during probate.
Fiduciary
Someone legally obligated to act in another person's best interests.
Fiduciary Duty
The highest duty recognized by law, requiring honesty, loyalty, prudence, and good faith.
Grantor
A person transferring ownership of property.
Grantee
The person receiving ownership of property.
Guardian
A person appointed to manage the affairs of a minor or incapacitated adult.
Guardian Ad Litem
An individual appointed by the court to represent the best interests of a minor or incapacitated person during litigation.
Heir
A person who inherits property under Florida's intestate succession laws when someone dies without a valid Will.
Holographic Will
A handwritten Will.
Florida does not recognize holographic Wills unless they are executed with all formalities required by Florida law.
Homestead
A person's primary residence that receives special protections under the Florida Constitution. Homestead property may be exempt from most creditors, receive valuable property tax benefits, and pass according to special inheritance rules.
Inheritance Tax
An Inheritance Tax is a tax imposed on the person who receives property from a deceased individual's estate. Unlike an estate tax, which is paid by the estate before assets are distributed, an inheritance tax is paid by the beneficiary and may vary depending on the beneficiary's relationship to the decedent.
Florida does not have an inheritance tax. As a result, beneficiaries who inherit property from a Florida estate generally do not pay Florida tax simply because they received an inheritance.
However, inherited assets may still have other tax consequences. For example, inherited retirement accounts may be subject to federal income tax when distributions are taken, and inherited property may later be subject to capital gains tax if it is sold. Additionally, if the decedent lived in or owned property in a state that imposes an inheritance tax, that state's laws may apply.
Do not confuse an inheritance tax with the federal estate tax. Florida also does not impose a state estate tax, although very large estates may be subject to the federal estate tax.
Inventory
A list of the testator's property.
Interested Person
Any individual or entity whose rights may reasonably be affected by a probate proceeding. Interested persons may include beneficiaries, heirs, creditors, Personal Representatives, trustees, and others recognized by the court.
Intestate
Dying without a valid Will.
Intestate Succession
The laws governing who inherits when someone dies without a Will. Florida Statutes: §§ 732.101–732.111, Florida Statutes.
Inventory
A list of probate assets filed with the court.
Joint Tenants with Right of Survivorship (JTWROS)
A form of joint ownership in which the surviving owner automatically receives the deceased owner's interest upon death. Property held as Joint Tenants with Right of Survivorship generally passes outside of probate.
Kindred
All persons described as relatives of the decedent under the Florida Probate Code.
Lady Bird Deed (Enhanced Life Estate Deed)
A Lady Bird Deed, also known as an Enhanced Life Estate Deed, is a type of deed that allows a property owner to retain complete ownership and control of Florida real estate during his or her lifetime while automatically transferring the property to one or more named beneficiaries upon death—without the need for probate.
Unlike a traditional life estate deed, a Lady Bird Deed allows the owner to sell, mortgage, lease, or even revoke the deed at any time without obtaining the beneficiaries' consent. Because the beneficiaries have no vested ownership interest during the owner's lifetime, the owner maintains maximum flexibility while avoiding probate for the property.
Lady Bird Deeds are commonly used in Florida estate planning because they are relatively inexpensive, preserve the owner's control over the property, and often allow the beneficiaries to receive a step-up in tax basis upon the owner's death. They may also help preserve homestead protections and avoid many of the costs and delays associated with probate.
Letters of Administration
The court order appointing a Personal Representative and authorizing them to act on behalf of the estate.
Note: Many states use the term "Letters Testamentary." Florida typically issues Letters of Administration regardless of whether the estate is testate or intestate.
Life Estate
A life estate is a form of real property ownership. A life estate provision in a deed permits the property owner to have possession of their property until their death, at which point the ownership of the property is automatically transferred to the beneficiary. The holder of a life estate has certain limitations on how they can use their property, and must have the permission of the beneficiaries, referred to as remaindermen, to sell that property.
Living Trust
A trust created during the grantor's lifetime to own and manage assets. A properly funded living trust allows assets titled in the trust to avoid probate while providing ongoing management during incapacity and after death.
Marshal Assets
The process by which a Personal Representative identifies, locates, secures, values, and takes control of all probate assets belonging to the estate.
Nuncupative Will
A will made orally because the testator was incapable of signing (usually on his/her deathbed), but written down after the testator's death and sworn to by witnesses.
Nuncupative wills (oral or verbal wills) are not recognized in Florida under any circumstances, even if they are made on a deathbed or during an emergency.
(To ensure your wishes are legally enforceable in Florida, your estate plan must adhere to formal execution requirements:
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In Writing: The will must be typed or printed, not simply spoken.
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Age: The testator must be at least 18 years old (or emancipated).
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Signatures: The testator must sign the document at the end in the presence of witnesses.
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Witnesses: Two competent witnesses must sign the will in the testator's presence and in the presence of each other.
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Self-Proving Affidavit: While optional, attaching a self-proving affidavit notarized at the time of signing speeds up the probate process, as it prevents the need to locate witnesses in court later.)
Non-Probate Assets
Assets that transfer automatically upon death without going through probate. Examples include jointly owned property with survivorship rights, life insurance with named beneficiaries, retirement accounts, payable-on-death accounts, and assets held in a revocable trust.
Notice of Administration
A formal notice served by the Personal Representative informing interested persons that probate has been opened. The notice advises recipients of important legal rights, including deadlines for challenging the validity of the Will or the qualifications of the Personal Representative.
Notice to Creditors
A legal notice published to inform creditors that probate has been opened and that claims must be filed within the statutory deadline.
Order to Show Cause
Court order commanding a person to appear in court at a specific date and time and to show cause to the court’s satisfaction why he or she should not be compelled to perform a certain act (or cease a certain act).
Partition
A Partition is a legal action filed in court to divide or sell real property owned by two or more co-owners when they cannot agree on what to do with the property. Partition actions are common when siblings or other heirs inherit real estate together after a family member dies.
In Florida, the court may order:
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Partition in Kind – The property is physically divided among the owners if doing so is practical and equitable.
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Partition by Sale – If the property cannot be fairly divided, the court orders the property sold and the proceeds distributed among the owners according to their ownership interests.
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A partition action may also address issues such as reimbursement for mortgage payments, property taxes, insurance, maintenance expenses, and improvements made by one or more co-owners.
Although partition is often a last resort, it provides a legal method for resolving disputes when co-owners cannot agree to sell, retain, or buy out one another's interests. Florida Law: Chapter 64, Florida Statutes.
Per Capita
An estate distribution method in which each surviving beneficiary at the same generational level receives an equal share.
Per Stirpes
An estate distribution method in which a deceased beneficiary's descendants inherit that beneficiary's share.
Personal Representative
Florida's legal term for the individual responsible for administering an estate. Other states often use the term "Executor."
Petition for Administration
The document filed with the probate court requesting the appointment of a Personal Representative and the opening of a probate estate.
Pour-Over Will
A Will designed to transfer any probate assets not already titled in a revocable trust into that trust after the person's death. Although the assets may still pass through probate, they ultimately become part of the trust for distribution.
Prenup / Prenuptial Agreement
A legal agreement entered into before a marriage outlining what happens to each spouse’s assets when certain events (such as divorce or death) occur.
Pretermitted Heir
A child or spouse who, under certain circumstances, is not mentioned in the will and who the court believes was accidentally overlooked by the testator when making his/her will. If the court determines that an heir was pretermitted, that heir is entitled to receive the same share of the estate as he/she would have had the testator died intestate.
Probate
The court-supervised process of administering a deceased person's estate.
Probate Asset
An asset owned solely by the decedent that does not automatically transfer by beneficiary designation, joint ownership, or trust. Probate assets generally require court administration before ownership can be transferred.
Probate Avoidance
Legal planning strategies designed to reduce or eliminate the need for probate. Common probate avoidance tools include revocable trusts, beneficiary designations, Lady Bird Deeds, joint ownership with rights of survivorship, and transfer-on-death or payable-on-death designations.
Proof of Service
The form filed with the court that proves the date on which documents were formally served on a party in a court action.
Qualified Disclaimer
A disclaimer that satisfies federal tax law requirements, allowing the disclaiming beneficiary to refuse an inheritance without being treated as making a taxable gift to the next recipient.
Remainderman
A Remainderman is the person or entity entitled to receive ownership of property after a prior owner's or beneficiary's interest ends. Most commonly, a remainderman receives property upon the death of a person holding a life estate.
For example, if a deed provides that a homeowner retains a life estate in the property and, upon the homeowner's death, the property passes to his or her children, the children are the remaindermen. While the life tenant is alive, the remaindermen generally have a future ownership interest but do not have the right to possess or control the property.
In Florida estate planning, remaindermen are frequently named in Life Estate Deeds, Lady Bird Deeds (Enhanced Life Estate Deeds), and certain trusts. However, unlike a traditional life estate deed, the beneficiaries under a Lady Bird Deed have only a contingent future interest because the owner retains the right to sell, mortgage, or revoke the deed during his or her lifetime.
Residuary Estate
The portion of an estate remaining after payment of debts, expenses, taxes, and distribution of all specific gifts made in the Will.
Revocable Trust
A trust that may be amended or revoked by the grantor during his or her lifetime. Revocable trusts are commonly used in Florida estate planning to avoid probate, provide incapacity planning, and simplify the transfer of assets after death.
Self-Proving Affidavit
A Self-Proving Affidavit is a sworn statement signed by the person making the Will (the testator) and the Will's witnesses before a notary public at the time the Will is executed. The affidavit allows the probate court to accept the Will without requiring the witnesses to later appear in court or provide additional testimony to prove that the Will was properly signed.
In Florida, including a Self-Proving Affidavit generally makes the probate process faster and more efficient because the court can presume that the Will was executed in compliance with Florida law. Although a Self-Proving Affidavit is not required for a Will to be valid, it is strongly recommended and is included with most professionally prepared Florida Wills. Florida Law: § 732.503, Florida Statutes.
Small Estate
A general term describing estates that qualify for simplified probate procedures. In Florida, this typically refers to estates eligible for Summary Administration, although Florida law does not officially use the phrase "Small Estate."
Special Needs Trust
A Special Needs Trust enables a person under a physical or mental disability or an individual with a chronic or acquired illness, to have, held in Trust for his or her benefit, an unlimited amount of assets. In a properly-drafted Special Needs Trust, those assets are not considered countable assets for purposes of qualification for certain governmental benefits.
Specific Bequest
A specific item, distinguished from all others of the same kind belonging to the testator that is designated in the will as going to a specific beneficiary. If the specific item is no longer in the estate when the decedent dies, the bequest fails and resort cannot be made to other property of the decedent.
Spendthrift Trust
A trust designed to keep money out of the hands of creditors. Often established to protect someone who is incapable of managing his or her financial affairs.
Summary Administration
A simplified probate procedure available in Florida when the value of the probate estate (excluding exempt property) does not exceed $75,000, or when the decedent has been deceased for more than two years. Summary Administration is generally faster and less expensive than Formal Administration. (Discussed further here.)
Tenancy in Common
Tenancy in Common (TIC) is a form of property ownership in which two or more people each own an undivided interest in the same real estate. Each co-owner has the right to use and possess the entire property, regardless of the size of his or her ownership interest.
Unlike Joint Tenants with Right of Survivorship, a tenant in common's ownership interest does not automatically pass to the other co-owners upon death. Instead, the deceased owner's share passes according to his or her Will, Trust, or, if there is no Will, under Florida's intestate succession laws. Because of this, Tenancy in Common is common among siblings and other family members who inherit property through probate.
Co-owners may own equal or unequal percentages of the property, and each owner generally has the right to sell, transfer, mortgage, or devise his or her individual interest without the consent of the other owners.
Testate
Dying with a valid Will.
Testator
A person who makes a valid Will. (A female testator is sometimes referred to as a "testatrix," although modern legal practice almost always uses the term "testator" regardless of gender.)
Totten Trust
A bank account in your name for which you name a beneficiary. Upon the death of the named holder of the account, the money transfers automatically to the beneficiary.
Trust Administration
The process of managing and distributing trust assets according to the trust agreement after the grantor's death or incapacity. Trust administration generally occurs outside of probate but still requires the trustee to fulfill important legal and fiduciary duties.
Trustee
The individual or institution responsible for managing trust assets and administering the trust according to its terms. A trustee owes fiduciary duties to the trust beneficiaries and must act honestly, prudently, and in their best interests.
Uniform Transfer to Minors Act
A Florida law that provides a way for someone to give or leave property to a minor by appointing a “custodian” to manage the property for the minor.
Venue
The geographical limits of a court’s jurisdiction (usually a county or a division with a county).
Ward
A person, especially a child, placed by the court under the care of a guardian.
Will
A legal document directing the disposal of the testator’s property after their death. A will is revocable during the maker’s lifetime.
Will Contest
A proceeding peculiar to probate for the determination of questions of construction of a will or whether there is or is not a will. Any kind of litigated controversy concerning the eligibility of an instrument to probate as distinguished from validity of the contents of the will. (Will contests are in rem proceedings in that the contest is brought against the thing, the will, as opposed to in personam proceedings, which are brought against a person.
PROBATE RESOURCES
Serving Families Throughout Central Florida
Kaney Law proudly assists clients with probate and estate planning throughout Florida, including:
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Volusia County
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Flagler County
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Brevard County
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Seminole County
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Orange County
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Lake County
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Marion County
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St. Johns County
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Putnam County
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Citrus County
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Palm Beach County
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Lake County
Whether your loved one lived in Daytona Beach, Ormond Beach, Port Orange, New Smyrna Beach, Palm Coast, Deland, Deltona, Flagler Beach, Palm Coast, Edgewater, Palm Beach, or elsewhere in Florida, we are here to help.
Give us a call: (386) 281-5777