Estate Planning, Collaborative Family Law & Mediation

An Estate Planning Vocabulary Primer

There’s no doubt that lawyers speak a language all their own, but when it comes to wills or probate matters, knowing a few key terms can go along way toward streamlining the process and improving your understanding of what your lawyer is talking about. Here are some of the more commonly heard terms:

  • Power of Attorney – written authorization for someone else (the agent) to manage the principal’s (your) property
  • Durable Power of Attorney – the authority of the Power of Attorney continues even if the principal (you) is incapacitated or becomes incompetent.
  • Health Care Directive – a document used to (a) appoint someone else (an agent) to make health care decisions for the principal (you) or, (b) allow the principal (you) to make health care decisions in advance or, (c) do both of those things.
  • Health Care Power of Attorney – written authorization for someone else (an agent) to make health care decisions for the principal (you).
  • Living Will – generally this is used inaccurately to refer to a Health Care Directive. It can refer to a document that is used to appoint an someone else (an agent), make health care decisions or both, but limited to use when the principal (you) is in a terminal condition, but the document must have been written and executed (signed and notarized) before August 1, 1998.
  • Probate – the process of proving that a will is valid. A court proceeding that is necessary to pass title to property that is owned solely by the decedent (the person who has died) at the date of death.
  • Probate Asset – an asset (property) that needs a court order to transfer title.
  • Non-Probate Asset – an asset (property) that has a title that passes to a survivor by operation of law; it does not need a court order to transfer title.
  • Testate – having a will; the Will then provides directions to the court for the distribution of property.
  • Intestate – not having a will; state law will determine the distribution of the decedent’s property.
  • Heir – a person entitled to receive property after the death of the decedent by operation of law
  • Holographic Will – a handwritten will that has been signed, but not witnessed. Minnesota does not recognize holographic wills.
  • Personal Representative – the person appointed by the court to administer an estate.
  • Living Trust – A trust created and funded during life; formerly called an Inter Vivos Trust. These trusts can be either revocable [the grantor (typically the person funding the trust) may alter it or terminate it during their lifetime] – or irrevocable [the grantor may not alter it or terminate it during their lifetime].
  • Testamentary Trust – a trust created by a will during probate.

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