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Definitions of Some Words and Terms use in Probate and in Wills and Trusts:
- ademption/adeem-a legal term to mean that a gift in a will fails. For example, Dad leaves his beach house in his will to his daughter Mary. But Dad sold the beach house before he died. Usually, depending on the wording and circumstances, the will is treated as if this part of the will didn't exist.
- administrator-a person who is appointed by the court, but not named in a will, to collect and sell and distribute with court approval the assets of an estate. In contrast, an executor does the same thing as an administrator but is chosen by the person who wrote the will (testator) to do this. An executor's appointment must also be made by the Court. If a person dies without a will, the person who collects and sells and distributes the assets of an estate will be the administrator. In modern usage an administrator can be male or female; in older usage an administrator was a male.
- administratrix-old term for a female administrator.
- affidavit of death-To initiate a probate proceeding there must be some proof that the person died. Usually this is a death certificate. However, a death certificate usually lists a cause of death and if the coroner spends some time investigating the cause of death it will take a while--perhaps, months, to get a death certificate. In such a case the coroner may issue an affidavit of death proving that the person died.
- affidavit of death of joint tenant-See joint tenancy below.
- affidavit of entitlement-If the estate is under $25,000 (or under $100,000 if it the only heir is a spouse) in, Nevada, and does not contain real estate--a timeshare is considered real estate--the whole probate process can be done an on affidavit.
- affordable probate lawyer or attorney-We think that we are more than affordable probate lawyers; we think we are the high quality low cost probate lawyers in Nevada. See our published fees, Probate.
- amendment-If circumstances change an amendment to a trust can be written. Since the trust may already have property in it, it is easier to write an amendment than to create a whole new trust and then re-title property into the new trust.
- ancillary probate-Normally probate is done in the state in which the decedent (person who died) resided. However, if the person owned real estate in another state, then there will have to be an ancillary probate in any other state where the person owned real estate. See Ancillary Probate
- anti-lapse statute-Suppose a will says, "I give my summer home to Mary Sue," but Mary Sue died after the will was written and before the will writer died. Does this gift "lapse" or fail or does it go to Mary Sue's descendants? N.R.S. 133.200 says yes only if Mary Sue is a descendant of the will writer
- apostille-a certification by a government agency other than the issuing government agency that the document is authentic. These can be difficult to get, are not usually required by the probate court, and if demanded by a bank or other financial institution, we can often get an order from the probate court that an apostille is not necessary.
- "as husband and wife"-Sometimes property is titled to Jack and Jill "as husband and wife." The intent is that they hold the property as joint tenants so that if one dies, the other automatically owns the property, but in Nevada this DOES NOT WORK. A deed to a husband and wife must deed the property to them as joint tenants if a joint tenancy is intended.
- attorney-In Nevada and the United States the word "attorney" is used interchangeably with the word "lawyer." There is absolutely no difference between "lawyers" and "attorneys."
- attorneys' fees-see Low Fees for Uncontested Nevada Probates
- bequest-A gift in a will such as "I give my 2003 Ford to John Doe" or "I give $5,000 to Mary Roe." Generally a bequest refers to something that is not real estate. A gift of real estate in a will is called a devise. Bequests are further divided into specific bequests and general bequests. (There are also other types of bequests.) A specific bequest is of a certain thing, such at the 2003 Ford mentioned above. The $5,000 mentioned above is a general bequest. The type of bequest is important if there is a shortfall in the estate. If the 2003 Ford is gone, that gift generally fails (adeems, see above). General bequests such as cash do not fail and may take precedence over specific bequests.
- blocked minor's account-A person under 18 is not considered an adult and therefore if money should to that person through probate, life insurance proceeds, or a personal injury case, the money cannot be given directly to the person under 18. The "default" way to handle this problem is to get a court order saying that the money will be put in a bank account subject to a court order that neither principal nor interest can be taken out until the minor reaches the age of 18 at which point the minor can to the bank and collect all of the money.
- blood relative-a relative who shares a common ancestor. Except for spouses and the parent child relationship formed by a formal adoption, or a parent child relationship presumed as a matter of law (because the child was born during the marriage), in the absence of a will, only blood relatives can inherit.
- capacity (mental) to write a will-called testamentary capacity-see below, the easiest test of mental abiltity
- capacity (mental) to write a trust-usually a tougher standard than testamentary capacity.
- certified copies-If a probate proceeding is filed in Nevada, but earlier a probate proceeding was filed in another state, the Nevada court will want to see certified copies of the will (if there is one) and of the Order appointing an Executor or Administrator and of the Letters Testamentary or Letters of Administration. Such certified copies have BOTH a Court's filing stamp AND a certification stamp and often a court seal in which a court official certifies that the copy is an accurate copy of what is in the actual court file. In Canada, public notaries can certify court copies but American Courts want the certification to be by the Court, not a public notary.
- civil law-N.R.S. 134.150 http://www.leg.state.nv.us/Nrs/NRS-134.html#NRS134Sec150 provides that the "degree of kinship" shall be determined by civil law. See degree of kinship.
- Clark County-This is Nevada's most populous county and includes the metropolitan area of Las Vegas, Boulder City, Henderson, and North Las Vegas, as well the growing city of Mesquite on the Utah border.
- co-administrator-There can be two or more administrators. Under Nevada law an administrator who resides out of state must have a Nevada resident co-administrator.
- codicil-fancy legal term for an amendment to a will. Most lawyers consider it better to tear up the old will and write a new one instead of having amendments to a will.
- community property-defined in N.R.S. 123.220; basically property acquired during marriage with the exceptions set out in N.R.S. 123.130 defining separate property. With some exceptions, a spouse can will his or her half of community property to whoever the spouse wants, but if there is no will and there is a surviving spouse, the surviving spouse, in some circumstances, gets all of the community property passing through probate, N.R.S. 123.250. Occasionally a real estate deed is made out to Jon and Mary, husband and wife as community property. There is no such recognized property form in Nevada and it will be considered property held as tenants in common, not joint tenancy.
- co-executor-There can be two or more executors.
- consanguinity-This word means the same as kin or kinship. N.R.S. 139.040(1)(i) http://www.leg.state.nv.us/NRS/NRS-139.html#NRS139Sec040 makes reference to "the fourth degree of consanguinity." This term is the same as the fourth degree of kinship.
- coroner-a county official who called when a dead body is found; the coroner will make a determination of the cause of death if the person died while not being medically supervised and issues the death certificate.
- death certificate-In the United States these are usually issued by the County using a State form and this is the most common document used to prove death when initiating a probate proceeding. The European Union issues death certificates each of which contains more than a dozen languages, including, of course, English. The U.S. State Department will issue a "Report of Death of a U.S. Citizen or U.S. Non-Citizen National Abroad" which can be used instead of a death certificate.Death certificates that are not in English present special problems.
- degree of consanguinity." This term is the same of the degree of kinship.
- decedent-dead person, usually the person whose assets go through probate
- degree of kinship-see civil law and kin. The degree of kinship is determined by counting the number of steps from one kin to the common ancestor and then back from the common ancestor to the other kin. If a person dies without a will and is not survived by the usual relatives such as parents, children, grandchildren, siblings or spouse, that person's property usually goes to the next of kin with the lowest degree of kinship.
- discount probate lawyer or attorney-In Nevada N.R.S. 150.060(4) authorizes an attorney to contract with a client, subject to ultimate court approval, for a probate fee of 4% of the first $100,000 of the estate, 3% of the next $100,000, 2% of the next $800,000, 1% of the next $9,000,000, and 0.5% of the next $15,000,000. Any lesser fee is arguably a discount probate attorney fee or discount probate lawyer fee. Our fees are substantially less. See Probate
- escheat-if a person dies without a will AND no relatives can be found, the money from the estate or other property of the decedent if no estate is opened up can go to the State of Nevada; the person's relatives then have six years in which to get the money back from the state. See Mom Dies, Nevada Inherits However, often times, if a bank or other institution hold's a dead person's money and no estate is opened up the bank may simply turn the money over to the County Treasurer or to the State of Nevada Unclaimed Property Fund. Escheated money requires a complicated procedure to get; money that is merely in an unclaimed property fund is easier and cheaper for the heirs to get. (Escheated money involves a lawsuit against the State of Nevada filed in Carson City plus a probate proceeding.)
- executor-person named in the will to handle the estate in probate. In modern use this person can be of either sex. In older usage, an executor.
- executrix-old term for female executor
- ex parte-a Latin term that meaning that one person applies to the Court for something without having to give notice to other interested parties. A good example of this is an ex parte application to inventory a safe deposit box. See Safe Deposit Boxes
- first degree of lineal consanquinity or affinity-This phrase means "parent-child" and "husband-wife." This phrase comes from N.R.S. 375.090(5); under this section if there is a transfer of Nevada real estate there will be a transfer tax due, except if the transfer is between parent and child or husband and wife, or another exception applies. There are 13 other exceptions in N.R.S. 375.090 to having to pay a real estate transfer tax, including transferring in or out of a trust if there is no real change in ownership and inheritance under a will.
- general administration-In Nevada estates larger than $300,000 require general administration as opposed to the slightly faster and slightly cheaper summary administration or the substantially faster and cheaper set aside without administration for estates not over $100,000.
- gold medallion signature-typically mutual funds in a probate proceeding require the executor's or administrator's signature to be gauranteed by a bank which is liable if the person signing the paperwork to get the proceeds is the not the person he or she say they are. A notary can not substitute for the bank. Either the administrator or executor needs a good customer relationship with the bank or their attorney needs a relationship with a bank.
- grantor-the person who puts money or property into a trust; also, the person on a deed who sells or gives away real estate.
- holographic will-a will in which the signature, date and material provisions are hand written (not typed) by the testator (person making the will); a holographic will need not be witnessed to be valid.
- husband and wife-occasionally real estate is deeded to Jon and Mary as husband and wife. The intent is that if one dies the other automatically owns it all as if the property were held in joint tenancy. This is a mistake in Nevada and the property is considered to be held by them as tenants in common so that when the first dies, the survivor must probate half the property.
- hypothecate-archaic legal term meaning to offer property as collateral, usually for a loan. When you buy a house with a mortgage you hypothecate the house to insure payment of your mortgage obligations. This is a term found in many trusts as some financial institutions like to see certain boilerplate in a trust.
- Independent Administration of Estates Act-a 2011 Nevada probate law that simplifies the process of selling real estate during the probate process, see N.R.S. 143.300 et. seq.
- intestate-when a person dies without a will; in that case who gets what is controlled by the laws of intestate succession
- intestate succession-the laws that say who gets what if a person dies without a will See If You Die without a Will
- issue-a legal term meaning the same thing as descendants. Your children, your grandchildren, your great grandchildren etc. are your descendants and issue.
- joint tenancy, joint tenants, joint tenants with right of survivorship-a way for two or more people to hold property so that if one of them dies the survivors automatically are entitled to the share of the dead owner. This method avoids probate. Typically real estate is held in joint tenancy and upon the death of one tenant the surviving tenant(s) files with the County Recorder an Affidavit of Death of Joint Tenant with attached Death Certificate.
kin, kindred, next of kin-Two people are kin or kindred if they have a common ancestor or are married. In most cases if a person dies without a will only kin can inherit. Your kin are related to you by blood except for your spouse. Your mother's sister's husband may be your "uncle" but he is not a blood relative and is not your kin. A biological parent of a child and the child share a common ancestor. However, if the child is formally adopted or is presumed as a matter of law to be a child of the marriage then the child and parent are kin even if there is no biological tie. The importance of being kin is that people who are not kin of the decedent can not inherit in the absence of a will.
- lawyer-In Nevada and the United States the word "lawyer" is used interchangeably with the word "attorney." "Lawyers" are the same as "attorneys." In the United Kingdom and some other English speaking countries lawyers are divided in "solicitors" who don't appear in court and "barristers" who have the exclusive privilege to appear in court.
- Letters Testamentary or Letters of Administration-A court document appointing an executor or administrator which gives the person power to determine and collect assets of the estate of a dead person. In most states, including Nevada, a person who want to collect assets for the estate as executor or administrator must have a certified copy of both the Order appointing that person plus Letters of Administration or Letters Testamentary. Also, most banks want to see a certified copy of the death certificate.
- life estate-a person can leave real estate to another person for as long as that person lives; after that the real estate goes to other people who own the remainder interest. I've noticed that some clients confuse this term with a trust.
- living will-This usually refers to a document which states your wishes for health care choices if you are unconscious or otherwise unable to make health care decisions and the same document can also appoint relatives or friends to make health care choices for you if you are unconscious or can't make the choices.
- low cost probate lawyer or attorney-Within large limits the probate court lets clients and lawyers agree on a probate fee. We believe we are the high quality low cost probate attorneys in Nevada and we list our fees for uncontested probates on our website to make it easy for you to verify this claim. Probate
- low fee probate lawyer or attorney-see above
- oral will-Oral wills are invalid in Nevada. Oral wills are sometimes called "noncupative will."
- non-conforming fee-estate planning often involves deeds. Nevada County Recorders charge a $25 non-conforming fee for a variety of reasons that can be avoided. See Nevada Deeds
- non-cupative will-an oral will; Nevada does not recognize such wills
- payable on death account-a bank account or brokerage account that is paid to a specified beneficiary when that beneficiary produces proof that the account holder has died.
- payable on death deed-This is my slang term for a deed authorized by N.R.S. 111.109, more technically called a Transfer on Death Deed. Such a deed, which must be filed before the death of any grantor, provides for a transfer of the property to a specified beneficiary upon the death of the grantors. This deed avoids the subject real estate having to be probated and avoids a real estate transfer tax upon death.
- personal representative-the modern terms that includes both executors and administrators.
- pretermitted heir-A child or spouse the court believes was accidentally omitted from the will. See Spouses and Children
- prayer for relief-A probate petition ends with a statement of what the lawyer and client want the client to do. In modern English the word "pray" is used to describe a person's requests or other statements to God, but in older English usage the word "pray" had the broader meaning of a request.
- probate-the court procedure in which a dead person's property is distributed
- "probate approved list"-In Clark County (home to Las Vegas and nearby cities) the Probate Court hears probate matters on Fridays. In many cases the Petitions are pre-approved and the Order signed and ready for pick-up from the bailiff, but, if when the case is called, anyone makes an objection, the approved order will be withheld and a hearing conducted.
- "probate deed"-many of our clients expect a "deed" from the probate court when they inherit property. The way it actually works is that a certified copy of the probate court's order saying who gets the real estate is filed in the County Recorder's office and this constitutes "the deed."
- "probate specialist"-The state bar of Nevada does not currently certify lawyers or attorneys who have demonstrated extra knowledge of probate matters and therefore it does not allow Nevada lawyers to call themselves "probate specialists," or to allow lawyers to say that they "specialize" in probate.
- "probate researcher"-A person, usually not a lawyer, who tries to find unclaimed property of a dead person and then tries to get the heir to give that person a cut of the property in exchange for revealing the property and possibly helping the person claim the property. Some of these people are very ethical; some are shady.
- private professional administrator-a person experienced in selling estate assets; often a professional administrator is appointed if a lot of personal property must be sold or there is conflict among the heirs and no heir wants to serve as executor or administrator. For more, see Executor Administrator
- public administrator-an elected official who acts as the administrator when people die leaving property in the county and no heirs can be found; the public administrator can also be hired by heirs who could but don't want to serve as executor or administrator. For more, see Executor Administrator
- real estate transfer tax-a tax, usually a little more or less than 1/2% of value, depending on which Nevada county, when real estate is transferred; in some probates the person who gets the real estate has to pay this tax; with proper estate planning it can be avoided. See Death Transfer Fees
- residuary clause-A will usually contains specific gifts called bequests. The part of the will that says who gets all the rest is the residuary clause.
- retainer-this usually refers to a payment given by a client to a lawyer when the lawyer is hired. The payment could be payment of part of the fees or it could be an advance of money for costs. In probate cases there is a lot of variety from one lawyer to another with respect to retainers.
- right of survivorship-a term used to mean that if two or more people hold property and one dies the survivor or survivor(s) take the dead person's share. Some County Recorders (such as the Clark County Recorder) on their websites use the abbreviation "RS" on the "vesting" line of the property entry to indicate that the two or more persons holding the property are effectively holding the property as "joint tenants." In Nevada if a deed grants property to A and B as "Joint tenants" it is unnecessary to add the phrase, "with right of survivorship," although some people do so.
- separate property-defined in N.R.S. 123.130. In a nutshell this is property owned by a spouse before marriage or acquired afterward by gift or an award for personal injury damages. Separate property is distinguished from community property defined in N.R.S. 123.220. Under some circumstances, if there is no will, and there is a surviving spouse, the surviving spouse gets all of the community property with only the separate property being distributed according to the law of intestate succession.
- set aside or set aside without administration-a type of expedited probate procedure used in Nevada for estates with a value of less than $100,000 and where there is no advantage to appointing a personal representative
- special administrator-an administrator who is appointed to conserve or determine the estate assets; usually this person is appointed because for lack of information or other reasons it isn't yet appropriate to appoint a personal representative who will act from start to finish of the estate.
- statutory probate fee, statutory attorneys' fees for probate-N.R.S. 150.060(4) provides that attorneys and clients may enter into a fee agreement in which the attorney's probate fee is 4% on the first $100,000, 3% on the second $100,000, 2% on the next $800,000 of the probate estate and so on. However, attorneys and clients are free to enter into many other arrangements, some of them cheaper to the client and some of them more expensive to the client. Our fees average much less. See Probate Likewise, the similar statutory probate fee in California is NOT the minimum fee that can be charged.
- summary administration-In Nevada estates not over $300,000 in value can be probated with summary administration which is a slightly shorter and slightly cheaper process than general administration for larger estates.
- tenants in common-A form of joint ownership such that if one owner dies, the share of the dead owner does NOT automatically go to the other owners. Instead the share of the dead owner passes to his or her estate. Tenants in common is the default mode. For example a deed to "John Doe and Mary Doe, husband and wife," is a deed to them as tenants as common because it does not contain the magic words, "as joint tenants."
- testamentary capacity-The minimum mental ability to write a valid will. This is generally a lower standard than the mental capacity necessary to write binding contracts or to write a trust. This relaxed standard may be due to the fact "that you can't take it with you when you die." Testamentary capacity, for example, requires that Dad, a widow with a much younger girlfriend, knows leaving his money to his adult children might be "natural" but as long as he understands that he probably has testamentary capacity to leave his money to his girlfriend who is pouring on her charm.
- testate, usually as in a person died testate which means the person died with a valid will.
- testator-the person who writes a will; in modern usage this can be a person of either sex, but traditionally a testator was male.
- testatrix-old term for a female who writes a will
- transfer on death deed-Under N.R.S. 111.655 and related sections, Nevada's Real Property Transfer On Death Uniform Act, a deed (for example from parents to adult children) is filed before death but only becomes effective upon the death of all grantors. This deed avoids probate.
- trust-a device which avoids the probate process and provides for the property of a dead person to pass to his or her family and friends without a court process; trusts are generally preferable to wills.
- trustee-The person who administers or controls property in a trust. Usually the person who sets up the trust is the original trustee. After the original trustee dies or becomes disabled there is a successor trustee.
- Uniform Probate Code-Probate laws adopted by about half of the states. Nevada and California have not adopted the Uniform Probate Code completely; Arizona has.
- will-document describing to whom a person's property should go when the person dies. For a will to be given effect it must be probated which is generally time consuming and expensive.