A specific gift in a Will is said to adeem if it no longer belongs to the deceased when they die. For example, a father says in his Will, "I give my 1988 Mustang to my daughter", but he sells the Mustang before he dies.
Estate administrator is an outdated term for a person appointed by the Surrogate Court to administer an Estate when
- there is no Will (see "Intestacy")
- there is a Will but it does not name anyone to administer the Estate, or
- there is a Will but no one who is named to administer the Estate is willing or able to act.
The modern term for an estate administrator is personal representative.
Administering an Estate
Administering an Estate includes
- taking possession or control of the assets of the Estate
- obtaining a grant of probate or administration if necessary
- ascertaining and paying the debts, funeral expenses and taxes, and
- distributing the Estate according to the Will or the intestate succession rules
In your Personal Directive, your agent is the person or persons you appoint to make personal decisions on your behalf if you become incapacitated.
In your Enduring Power of Attorney, your attorney is the person or persons you appoint to handle your financial matters if you become incapacitated. Your attorney does not have to be a lawyer.
The beneficial owner of property held in trust is a person entitled to benefit from the property, even though not registered as the legal owner of the property.
Beneficiary includes a person entitled to receive
- a gift in a Will,
- a benefit from a trust,
- the proceeds of an insurance policy,
- the proceeds of a registered plan such as an RRSP, an RRIF, a LIF, a TFSA, an RDSP or a RESP, or
- the proceeds of a pension plan.
A codicil is a document by which you change the terms of your Will.
Co-ownership/Tenancy in Common
Two or more people own property as tenants in common or in co-ownership if, on the death of a co-owner, their interest in the property passes to their Estate. Contrast joint tenancy/ownership.
A discretionary trust is a trust, usually in a Will, where the trustee has complete control over the distribution of trust income and capital to beneficiaries.
Donor (in an Enduring Power of Attorney)
The donor in an Enduring Power of Attorney is the person signing the Enduring Power of Attorney.
A power of encroachment authorizes a trustee to use a beneficiary’s share for the beneficiary's benefit before the beneficiary is entitled to receive a payout of the trust. It is often used to empower the trustee to access a child’s share of their parent's Estate before the child is entitled to receive the entire share. For example, the child may not be entitled to receive their share until they reach 25, but in the meantime, the trustee has the power to encroach on the child's share to pay for expenses related to the child's education.
Enduring Power of Attorney
A Enduring Power of Attorney is a document in which you give another person (your Attorney) the power to manage some or all of your financial affairs if and when you are incapable of managing them yourself.
In this context, Attorney means substitute decision-maker, not lawyer. You can appoint any adult who is willing to accept the appointment to be your Attorney.
Estate has a couple of meanings:
It can be used to refer to all the property you own, both before and after you die.
If can also be used to refer to the property administered by your personal representative after you die.
Estate Planning is the process of rearranging your assets for the well-organized and tax-efficient transfer of your estate when you die. It is more complex than Will Planning, which does not involve the rearrangement of assets.
Executor and Executrix
Executor and executrix are the outdated terms for the person you appoint in your Will to administer your Estate. The modern term is personal representative (which includes an estate administrator).
A fiduciary duty is a legal duty a person has to act in the best interests of another person. For example, an attorney acting under an Enduring Power of Attorney for a donor who lacks capacity is under a fiduciary duty to use the assets for the benefit of the donor.
Gifts in Wills
There are three kinds of gifts in Wills:
- specific gifts are gifts of specific items: for example, "I give my diamond ring to my daughter, Rose".
- general gifts are gifts that are not tied to specific property: for example, "I give $10,000.00 to my son, John".
- residual gifts are gifts of what is left over after everything else has been taken care of (funeral expenses, debts, taxes, the expenses of administering your estate, specific gifts and general gifts): for example, "I give all the residue of my Estate to children, in equal shares".
A guardian is an individual you appoint in your Will to be responsible for your children after you die.
A holograph Will is a Will that is completely in the handwriting of the testator and signed by the testator. Holograph wills are valid in Alberta.
Inter Vivos Trust
An inter vivos trust is a trust that is created by a document other than in a Will.
An international Will is a Will that is valid in any country that has ratified the “Convention Providing a Uniform Law on the Form of an International Will”. It requires the signature of two witnesses and a lawyer to be valid.
A person dies intestate when they die without a Will. The opposite is testate.
The term issue in a Will includes all of a person's descendants (also referred to as lineal descendants). It is broader than children, which is limited to one generation.
Joint tenancy, also referred to as joint ownership, exists when two or more people share ownership of a single asset in circumstances where, on the death of a joint owner, legal ownership of the property passes to the surviving joint owner(s). See also co-ownership/tenancy in common.
Mirror Wills are a will planning tool for families. The most common pattern is that both parents' Wills say that when the first parent dies, the other parent inherits everything, but when the second parent dies, or if both parents die at the same time, the entire Estate goes to their children.
A partial intestacy occurs when a valid Will does not distribute the entire Estate. Partial intestacies often occur in home-made, downloaded or stationery-store Wills.
In a per capita distribution of a gift in a Will, the gift is divided equally among the members of the defined class of beneficiaries who are alive when you die. If a member of the class predeceases you, their share goes to the other beneficiaries in the class pro rata.
Your Personal Directive is a document in which you name someone you trust to be your Agent, with the power to make medical and other personal decisions on your behalf if and when you become incapable of making the decisions yourself.
Your personal representative is the person you appoint in your Will, or the person appointed by the Court, to administer your Estate.
Probate is a procedure in Surrogate Court that certifies the validity of a Will and confirms the authority of the Personal Representatives named within the Will.
Tenancy in common
A testamentary trust is a trust created in a Will. It comes into effect after the death of the testator.
A person dies testate when they leave a valid Will. The opposite is intestate.
A testator (female form testatrix) is a person who makes a Will.
A trust is a relationship that is established when a person holds and administers property for the benefit of another person (the “beneficiary”).
A trustee is a person responsible for holding and administering property for the benefit of one or more beneficiaries.
Your Will is a document you sign in which you state how you want your Estate administered and distributed after you die.