Glossary of Common Probate Terms

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Glossary of Common Probate Terms

A

Abate: To bring to an end or nullify.

Abatement: The reduction of certain gifts under a will to create a fund for expenses, taxes, debts, or other priority bequests under the law or the will.

Abstract of Judgment: A summary of a court judgment showing the amount owed by the losing party (judgment debtor) to the winning party (judgment creditor). Issued by the court, it can be recorded at the county recorder’s office to create a lien on the debtor’s real estate in that county.

Accounting: The process or system of settling accounts, including a statement of debits and credits in financial transactions.

Ademption: The failure of a specific bequest in a will because the property is no longer owned by the testator at the time of death.

Ad Litem: For the suit; pending the suit. Often seen in the term “guardian ad litem.”

Administrator: A person appointed by the court to manage the estate of someone who died without a will (also known as a Personal Representative). Variants include general administrator, public administrator, and special administrator.

Administrator with Will Annexed: A person appointed by the court to manage the estate of someone who died with a will, but where the will either fails to nominate an executor or the named executor cannot serve.

Adverse Possession: The open and notorious possession of real property for a certain period of time, held in opposition to the title of any other claimant.

Affiant: A person who makes an oath to a statement.

Affidavit: A written statement made under oath.

Age of Majority: The age at which a person legally becomes an adult. In Illinois, this age is 18.

Amended: To alter or change a document filed in court by replacing it with a new version. An amended petition in probate will be given a new hearing date.

Amendment: To modify a portion of a document filed in court without replacing it entirely. An amendment to a petition in probate will not be given a new hearing date.

B

Beneficiary: An individual or organization receiving a gift of property under a legal instrument such as a will, trust, or life insurance policy.

Bequeath: The act of leaving someone personal property in a will, e.g., “I bequeath my antique car to my brother Jody.”

Bequest: Personal property left to someone in a will.

Blocked Accounts: Cash or securities held in a financial institution, subject to withdrawal only upon court order or statute.

Bond: A document guaranteeing payment to a victim if a person in a position of trust fails to fulfill their legal responsibilities.

Brief: A written document outlining a party’s legal arguments in a case.

C

Capacity: The mental ability to make rational decisions, including understanding all relevant facts. Legal capacity allows a person to acquire rights, transfer rights, or assume duties according to their will.

Case Management Conference (CMC): A hearing between the judge and parties to discuss settlement possibilities and procedural matters before trial.

Certified Copy: An official copy of a document from a case file, certified as true and complete.

Change of Venue: Transferring a case from one judicial district to another.

Chattel: Any tangible, movable property, as opposed to real property.

Citation: A court-issued writ commanding a person to appear in court.

Codicil: An amendment or supplement to an existing will.

Commissioner: A court-appointed official with the power to make decisions on limited legal matters.

Community Property: Property acquired by a couple during marriage, except by gift or inheritance.

Confidential Record: Information in a court proceeding not available to the general public.

Conflict of Interest: A situation where someone has competing professional or personal obligations that could interfere with fair duties.

D

Decedent: A person who has died.

Decision: The judgment rendered by a court.

Declaration: A written statement made under penalty of perjury, showing the place of execution and the state of laws under which it was made.

Decree: A court order.

Deed: A legal document describing property boundaries and transferring ownership.

Demurrer: A written response to a lawsuit requesting dismissal on the grounds that there is no legal basis for the claim.

Dependent: In family law, a person financially supported by another; in juvenile law, a minor in court custody due to abuse, neglect, or molestation.

Developmental Disability: A mental disability beginning before age 18, continuing indefinitely, and substantially handicapping, such as intellectual disability, cerebral palsy, and autism.

Devise: Any property transferred under a will.

Devisee: A person or entity receiving property under a will.

Directive to Physician: A document authorizing the termination of life support under specified conditions, similar to a Living Will.

Disbursements: The act of paying out money from a fund or in settlement of a debt.

Discharge: A court order releasing an executor or administrator from further duties regarding an estate, typically upon completion of duties.

Disclaimer: The renunciation of a claim or power vested in a person.

Distributee: Someone who receives property from an estate.

Donee: One who receives a gift.

Donor: One who gives property to another, typically through a trust.

Durable Power of Attorney: A legal document allowing someone to act on another’s behalf, even if the grantor becomes incapacitated.

Durable Power of Attorney for Healthcare: A legal document designating someone to make healthcare decisions on another’s behalf.

E

Elective Share: A portion of an estate that a surviving spouse can claim, regardless of the will’s provisions.

Elisor: A court-appointed representative to sign documents when a party refuses or is unable to sign.

Encumbrance: A claim or restriction on a property’s title, such as a debt.

Equity: The difference between the fair market value of property and the amount owed on it.

Errata: Corrections of errors in a printed or written document.

Escheat: The legal transfer of property to the state when someone dies without heirs.

Escrow: Money or documents held by a third party until the conditions of an agreement are met.

Estate: All of a person’s possessions, including money, jewelry, securities, land, etc., managed by a fiduciary subject to a court order.

Executor: The person named in a will to carry out its directions, also known as a personal representative.

Exemplification: A formal certification of a document’s authenticity by the Clerk of the Court and the Presiding Judge.

Exhibit: A physical object introduced and identified in court as evidence in a case.

Ex Parte: A Latin term meaning “by or for one party,” referring to situations where only one party appears before a judge.

Expenses of Administration: Costs incurred by an executor or administrator in carrying out the terms of a will or administering an estate, including probate court fees, attorney fees, and other professional fees.

F

Fair Market Value: The price at which property would be sold by a willing seller to a willing buyer, both having all relevant information and not under compulsion to buy or sell.

Fiduciary: A person or organization managing property for another person, with a legal responsibility involving a high standard of care.

Fiduciary Duty: An obligation to act in the best interest of another party, such as a board member to shareholders or a trustee to beneficiaries.

Finding: A determination of fact by a judicial officer or jury.

G

General Administrator: A person appointed to manage the entire estate.

Grantor: The person who transfers assets into a trust for another’s benefit (also known as a trustor).

Guardian: A person appointed by the court to manage the personal care or financial affairs of a minor (ward).

Guardian ad Litem: A court-appointed person representing the interests of an incapacitated or minor person in a court case.

Guardianship: The office, duty, or authority of a guardian, and the relationship between guardian and ward.

H

Heir: A person who would naturally inherit property through a will or from someone who died without a will.

Holographic Will: A will entirely handwritten, dated, and signed by the person making the will.

I

In Forma Pauperis: A Latin term meaning “in the way of a pauper,” referring to the official waiver of court costs due to the filer’s insolvency.

In Propria Persona (In Pro Per): A Latin term meaning “in one’s own proper person,” referring to a case where a party represents themselves without an attorney.

Incapacity: The lack of ability to act on one’s own behalf.

Inheritance Tax: A state tax on property inherited from a deceased person, not applicable in Illinois.

Interlineation: Writing between the lines of an instrument.

Inter Vivos Trust: A trust set up during a person’s lifetime to distribute property to another person or organization.

Intestate: Dying without a will.

Inventory and Appraisal: A list of all assets in an estate, with cash items valued by the fiduciary and other items valued by a probate referee.

Irrevocable Living Trust: A trust created during the maker’s lifetime that cannot be changed.

Issue: All natural and adopted children and their descendants, often referred to as lineal descendants.

J

Joinder: Joining two or more legal issues to be heard in one hearing or trial for efficiency or fairness.

Joint Tenancy with Right of Survivorship: Property co-owned with rights of survivorship, meaning the surviving co-owner automatically inherits the property upon the other’s death.

Judgment: A court’s official decision on a matter.

Judicial Council: The body responsible for improving the administration of justice in Illinois, composed of judges, court executives, attorneys, and legislators.

Judicial Council Forms: Standardized forms created by the Judicial Council of Illinois for preparing court documents.

Judicial Officer: An official with the authority to decide matters brought before the court, including judges and Supreme Court justices.

Jurisdiction: A court’s authority to rule on legal issues in a dispute, determined by geographic location and case type.

K

Kindred: Relatives of a decedent under Illinois Probate Code.

L

Lapse: The failure of a gift in a will because the beneficiary is deceased and no alternate has been named. Illinois’s anti-lapse statute prevents gifts to relatives from lapsing unless the relative has no heirs.

Legacy: An old term for a transfer of personal property by will, now commonly referred to as a bequest or devise.

Legatee: A person named in a will to receive property (also known as a beneficiary).

Letters: The court document establishing authority to act as a guardian, conservator, or personal representative. For executors, it is “letters testamentary”; for administrators, “letters of administration.”

Life Estate: Ownership of property for the duration of a person’s life, after which ownership passes to someone else.

Limited Conservatorship: A type of conservatorship for developmentally-disabled adults.

Living Trust: A trust set up during a person’s lifetime, remaining under their control, also known as an “inter vivos trust.”

Living Will: A document stating a person’s wishes regarding life-support or other medical treatment when death is imminent, also known as a medical or advance directive.

Lodgment: Temporary submission of documents to the court, often for large exhibits or original documents needed for a one-time hearing.

LPS Conservatorship: A specific conservatorship under the Lanterman-Petris-Short (LPS) Act for involuntary detention and treatment of a person with a mental disorder.

M

Marital Deduction: A deduction allowing for the transfer of property between spouses free of estate and gift tax.

Minor: A person under the age of 18, not including emancipated youths. In guardianship, a person under 18 placed in the care of a court-appointed guardian.

Motion: A formal request made to a judge for an order or judgment. Motions can be for various purposes, such as continuing a trial, modifying an order, or addressing discovery issues.

Motion in Limine: A pre-trial motion requesting the court to decide on the admissibility of specific evidence, often to exclude prejudicial evidence.

N

Net Estate: The value of all property owned at death, minus liabilities.

Next of Kin: The closest living relatives of a decedent under Illinois’s intestate succession laws.

Notice: Information given to a person or entity about an act done or to be done.

Nunc Pro Tunc: A Latin term meaning “now for then,” used when an order is issued on one date but is effective retroactively.

Nuncupative: Oral form of a will, not valid in Illinois.

O

Order to Show Cause: A court order commanding a person to appear in court and explain why they should not be compelled to perform or cease a specific act.

P

Pecuniary: Relating to money or financial matters.

Per Stirpes: A method of distribution where the issue of a deceased beneficiary collectively take the share their parent would have received.

Personal Effects: Personal belongings such as clothes and jewelry.

Personal Property: Movable items owned by a person, as opposed to real property.

Personal Representative: A generic title for a person authorized to act on behalf of a decedent’s estate, typically an administrator or executor.

Petition: A formal, written request filed with the court for a specific action or order.

Petitioner: One who presents a petition to the court. The person opposing the petition is called the “respondent.”

Pleadings: Allegations by each party in a civil case of their claims and defenses.

Points and Authorities: Written legal arguments supporting a motion, including references to past cases and statutes.

Power of Attorney: A legal document authorizing someone to act on another’s behalf.

Prayer: The portion of a petition or complaint stating the requested relief or damages.

Predeceased Spouse: A spouse who died before the decedent while married to them.

Pretermitted Heir: A child or spouse not mentioned in the will, whom the court believes was accidentally overlooked. Such heirs may receive a share of the estate as if the testator died intestate.

Probate: The judicial process of proving a will’s authenticity and administering an estate. It involves marshaling assets, paying debts, and distributing remaining assets to rightful beneficiaries.

Probate Estate: All assets owned at death requiring legal proceedings before title transfer to heirs, excluding property passing automatically (e.g., trusts, life insurance proceeds).

Probate Examiner: Reviews probate files and documents for technical, procedural, and legal compliance before court hearings, providing recommendations for corrections.

Probate Referee: Appointed by the Illinois State Controller to value non-cash property in probate, conservatorship, and guardianship matters.

Proof of Service: A form proving the date documents were served on a party in a court action.

Pro Tempore (Pro Tem): A Latin term meaning “for the time being,” referring to a temporary referee or commissioner sitting for a judge.

Public Administrator: A public official handling estate administration when no executor or administrator is appointed.

Public Guardian (Public Conservator): An appointed or elected county officer authorized to serve as guardian or conservator.

Public Record: A court record available for public inspection.

R

Real Property: Land and attachments, as opposed to personal property.

Receipts: Cash or other assets received by the fiduciary, excluding those listed in the inventory and appraisal.

Regional Center: Private, nonprofit agencies contracting with the state to provide services to persons with developmental disabilities.

Residuary Estate: The portion of the estate left after specific bequests are made, often the largest portion.

Residuary Legatee: The person named in a will to receive the residue of an estate.

Respondent: The person against whom an appeal is made or the responding party in various legal matters.

Revocable Living Trust: A trust created during the maker’s lifetime that can be changed, allowing the creator to pass assets to beneficiaries without probate.

Right of Survivorship: In joint tenancy or community property, the property automatically goes to the co-owner if one dies.

S

Sealed Record: A court record closed to public inspection unless further ordered by the court.

Self-Proving Will: A will with a sworn statement signed by witnesses under penalty of perjury, accepted by many states to avoid the need for witnesses during probate.

Special Administrator: A person appointed to manage a deceased person’s property temporarily, often during disputes or emergencies.

Special Immigrant Juvenile Status (SIJS): A federal law allowing certain undocumented children in state juvenile systems to become Lawful Permanent Residents.

Special Needs Trust: A trust enabling a person with a disability to have assets held for their benefit without disqualifying them from certain governmental benefits.

Specific Bequest: A specific item designated in a will to go to a specific beneficiary. If the item is no longer in the estate, the bequest fails.

Spendthrift Trust: A trust designed to protect assets from creditors, often for someone incapable of managing their financial affairs.

Standing: The legal right to initiate a lawsuit, requiring sufficient impact by the matter and a resolvable case or controversy.

Statute: Written law passed by a legislative body.

Statutory Will: A standardized will form provided by Illinois law.

Stipulation: An agreement between parties or their attorneys.

Sua Sponte: A Latin term meaning “of its own will,” used when a judge takes an action without a party’s request.

Substituted Judgment: A legal doctrine allowing the court to authorize certain actions by a conservator relating to the conservatee’s estate.

Successor Fiduciary: The next person or organization appointed when a vacancy arises in a conservatorship, guardianship, or decedent’s estate.

Supplement: An addition to complete or correct a document in probate.

Surcharge: A court-imposed money judgment against a fiduciary for causing a loss to the estate.

Surety: One who guarantees the performance or payment of another’s obligation.

Surety Bond: A bond guaranteeing payment if the principal fails to fulfill their obligation.

Surety Bond Rider: An addendum extending the discovery period of a surety bond.

T

Tangible Personal Property: Physical personal property, such as automobiles, furniture, and heirlooms.

Taxable Estate: The fair market value of all assets owned at death, minus allowable deductions like debts and administration expenses.

Tenancy in Common: Joint ownership allowing a person to sell or leave their share without the co-owner’s consent. If a person dies without a will, their share goes to their heirs.

Testamentary Disposition: A disposition of property in a will.

Testamentary Trust: A trust created by a will, typically activated after the will-maker’s death.

Testate: Having a valid will at the time of death.

Testator: The person who makes a will.

Title: Legal ownership of property.

Totten Trust: A bank account naming a beneficiary who automatically receives the funds upon the account holder’s death.

Transfer Agent: A corporate representative authorized to transfer stock ownership, used by executors or administrators when transferring stock titles.

Trial: The principal method for resolving legal disputes, either before a jury or a judge, providing a final legal determination.

Trial Readiness Conference (TRC): A pre-trial hearing to expedite case disposition, establish court control, discourage wasteful activities, improve trial quality, and facilitate settlement.

Trust: A legal arrangement where one person (trustee) manages property for another’s benefit (beneficiary), created by a grantor through a written instrument.

Trustee: The person managing a trust’s property and distributing income according to the trust document.

Trustor: The person who transfers assets into a trust (also known as a grantor).

U

Uniform Transfers to Minors Act: Illinois law allowing property to be given to a minor, managed by a custodian.

V

Venue: The geographical area within which a court has jurisdiction.

Verification: A statement sworn under oath that something is true.

Vesting: The form of legal title by which property is held, often specifying the fiduciary capacity in probate matters.

W

Ward: A person, especially a child, under the care of a court-appointed guardian.

Will: A legal document directing the disposal of the testator’s property after their death, revocable during the testator’s lifetime.

Writ of Execution: A court order directing a sheriff to enforce a judgment by levying on the debtor’s property to satisfy the judgment creditor.

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