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Contesting A Will, Trust, Probate Or Inheritance: Jargon Buster

Reasons to choose Wilson Browne

Navigating the legal jargon surrounding Wills, Trusts, Probate and inheritance could be enough to put anyone off pursuing a potential claim.

There is no substitute for expert legal advice, especially as the sums of money involved could be large.

When you do talk to us, we’ll be able to advise you on whether you have a claim, and whether we feel it is worth pursuing but to help you prepare yourself we have assembled a comprehensive, easy to use jargon buster to give you the basic information you need to get started.

A - E

Administrator – The person who is appointed to take personal legal responsibility for distributing the property and possessions of a person who has died without leaving a valid Will. This is usually the closest blood relative but need not be.

Affidavit – A statement made on oath to confirm that what the person has stated in the document is true. A solicitor or Commissioner for Oaths can take the oath.

Assets – Everything a person or business owns including their money (cash, savings, pensions and investments), business interests, property and possessions.

Attorney – The named representative (or representatives) who has been given legal authority to deal with specified matters (such as finances and property) on behalf of another person. An Attorney is usually appointed in a document such as a Lasting Power of Attorney.

Beneficiary – A person who is entitled to benefit from something such as a gift or other benefit left to them in a Will or in a ‘trust’ (or under the ‘intestacy rules’ if there is no valid Will).

Capital – wealth in the form of money or other assets owned by a person

Caveat – An entry on the Probate Register preventing the issue of a Grant of Probate or Letters of Administration until it is removed

Certificate of Capacity – This is the confirmation given by a certificate provider that the person making a lasting power of attorney (LPA) understands the powers they are giving to someone else and has the necessary mental capacity at the time. They will also make sure the person has not been bullied or pressured into making the LPA.

Certificate Provider – To protect the interests of the person making a Lasting Power of Attorney (LPA), a Certificate Provider will need to satisfy themselves that the person understands the powers they are giving to someone else and has the necessary mental capacity at the time. They will also make sure the person has not been influenced into making the LPA. The Certificate Provider could be their Solicitor, Doctor or another independent person they have known personally for at least two years.

Codicil – Addition made to an existing will.

Court of Protection – The Court responsible for deciding how to protect the interests of a person who does not have the mental capacity to make their own decisions. It can:

  • Decide whether a person has the mental capacity to make particular decisions for themselves.
    • Make declarations, decisions, court orders or even a will on behalf of people who lack the mental capacity.
    • Decide whether a Lasting Power of Attorney (LPA) is valid.
    • Remove Attorneys who fail to carry out their duties.
    • Make decisions where there is a dispute as to whether an LPA should be registered.
    • Write a Will for someone who does not have the mental capacity to do so for themselves.
    • Appoint and remove Deputies

Deceased – The person who died.

Deputy – Where there is no Lasting Power of Attorney, a Deputy is the person appointed by the Court of Protection to manage someone’s affairs and make decisions for them when they have lost the ability or mental capacity to do this for themselves. It is the responsibility of the Deputy to act in the best interests of the person who has lost capacity.

Disinherit – Leaving someone out from what they might expect to receive on the death of someone else (such as their parent or partner). This can be intentionally achieved in a Will. However it is what often unintentionally happens if there is no will. This is because the intestacy rules which apply when there is no Will can have surprising results.

Discretionary Trust – A legal device where someone (called a Trustee) is given an asset (such as property or money or investments) to protect and look after for the benefit of someone else (called a beneficiary). This could be to save tax or because the beneficiary is not able to look after the asset themselves (perhaps they are under 18). With a discretionary trust the terms will permit the Trustee(s) to choose how to use the trust’s income and sometimes the capital.

Donor – The person who appoints a named representative (called an Attorney) to deal with specified matters (such as finances and property) on their behalf in a document such as a Lasting Power of Attorney.

Estate – The balance of a person’s assets after any obligations (such as bills, loans and mortgage) have been paid.

Estate Accounts – This is the official record of the administration of an estate by an Executor or Administrator (or their solicitor). This will detail all the assets collected in, as well as any money paid out to cover things like debts, paying tax, paying fees and distributing the estate.

Estate Administration/Administration of the Estate – The legal process of collecting in, valuing and distributing all of a person’s money, possessions and property after they have died. This includes paying any inheritance tax due.

Executor/ Executrix – This is the man, woman or business (such as solicitors) named in a Will to take legal and financial responsibility to ensure the wishes of the person who died are carried out in accordance with the Will. There can be more than one.

 

F - J

Fraud – Acting in a way that will mislead others in order to receive a financial benefit or other personal gain. The main examples are through false statements or documents or withholding information.

Grant of Letters of Administration – This is the official order of the Court which appoints a person or people to take personal legal responsibility for distributing the property and possessions of the person who has died, where there is no valid Will.

Grant of Probate – This is the official order of the court allowing the person or people appointed in a Will to take legal responsibility for carrying out its terms.

Grant or Grant of Representation – This is the official order of the court which appoints a person or people to take personal legal responsibility for distributing the property and possessions of the person who has died. This is called either a Grant of Probate (if there was a Will) or a Grant of Letters of Administration (if there was no Will).

Inherit – To receive a gift or a more substantial share of the money, property or possessions of someone who has died.

Inheritance Tax – This is the tax payable when someone dies. The amount payable depends on the size of the estate. This can be a complex area where specific advice should be taken

Intestacy Rules – These are the legal rules that determine what happens to the possessions, property, and children of a person who dies without leaving a valid Will.

Intestate – The name given to someone who dies without leaving a valid Will.

Invalid – Does not comply with the applicable rules and so it does not have legal force. It is not effective and is not binding.

 

K - O

Lack of Mental Capacity – Not having the ability to make decisions. This might be because of illness, injury, a learning disability, or mental health problems.

Lasting Power of Attorney or LPA – The legal authority given to a named representative (called an ‘Attorney’) to deal with specified matters (such as finances, medical treatment and living arrangements) on behalf of another person (called a ‘donor’). It will usually only take effect if the donor loses the mental capacity needed to make those decisions for themselves.

Liability or Liabilities – the debts of the Estate that fall to be paid following death eg. funeral expenses, tax, loans, mortgages etc

Mental Capacity – The ability to make decisions for yourself; being able to:
• Understand the information that is relevant to the decision.
• Remember the information long enough to be able to make the decision.
• Weigh up the information available to make the decision.
• Communicate the decision (this can be by speaking, using sign language, or perhaps through blinking an eye or squeezing a hand).

Mirror Wills – Wills made by a couple which reflect the terms of the other’s Will ie. leaving everything to the husband if the wife dies first and everything to the wife if the husband dies first.

Oath – A declaration of truth made by a person with a religious belief. It is made in front of a Judge, Solicitor or other qualified professional.

Office of the Public Guardian or OPG – The government department responsible for the registration of Lasting Power of Attorneys and monitoring the actions of Attorneys.

P - T

Power of Attorney – The legal authority given to a named representative (called an ‘Attorney’) to deal with specified matters (such as finances and property) on behalf of another person (called a ‘donor’) who has appointed them.

Probate – The permission and authority granted by the court (Probate Registry) to someone so they can distribute the money, possessions and property of a person who has died, in accordance with their Will.

Rectification – a correction to a Will on the grounds of a clerical error or a failure to understand the intentions of the person making the Will.

Survivorship – where property passes to the survivor(s) of joint owners automatically on the death of one of the joint owners. Survivorship will operate no matter what a Will says.

Testator/Testatrix – The man or woman who made a Will.

Trust – A legal device where someone (called a Trustee) looks after an asset (such as property, money or investments) for the benefit of someone else (called a beneficiary). There are many different types of trust and many ways a trust can arise, including through a course of behaviour.

Trustee – A person given an asset (such as property or money or investments) to protect and look after (following specified instructions) for the benefit of someone else (called a beneficiary). The Trustee becomes the legal owner of the asset until a specified event when it goes to the beneficiary.

U - Z

Will – A document where the person preparing it decides what will happen to their money, property and possessions after they die. It has to be written very clearly so it is interpreted in the way the person wants. To be valid a Will must comply with the strict rules on how it is signed and witnessed.