Most attorneys, including myself, use legalese. Some attorneys use more legalese than others. Although much that I write is in plain English, there are some legalese words that I have to use because there is no understandable substitute. Today we will discuss some of these words that you would most likely encounter and what they mean.
Heirs. Your heirs are who gets your property or “stuff” if you died without a will. The first persons who are your heirs are your surviving spouse and your children. If your children are not surviving, then their descendants become heirs. With no surviving spouse nor descendants, your heirs are your parents and then their descendants. If you still have no heirs, then up a generation to your grandparents and then their descendants. This process continues until someone living is found.
Devisee. A devisee is a beneficiary named in a will who will be receiving something from your estate after your death. The gift given to a beneficiary in a will is called a Devise. Another word for devise is Bequest. However, bequest is also used to describe a gift to a beneficiary in a trust.
Decedent. Decedent is just another word for the dead person. I would rather use the term Deceased because it is more understandable.
Testator. A person who makes a will is called a testator. I prefer the word Willmaker to describe the person making a will.
Personal Representative. A personal representative is the person appointed by the probate court to administer your estate after your death. If you name a personal representative in your will, he or she has first priority to be appointed by the court. The gender neutral term personal representative replaces the male terms executor and administrator and the female terms executrix and administratrix.
Grantor. Grantor is a term used for someone in a deed or in a trust. A grantor in a deed is the seller of the real estate or the person conveying the property to another. The grantor in a trust is the person who made the trust. A trust grantor is also called a Settlor. I use the term Trustmaker to describe the person who makes a trust.
Grantee. A grantee is a person named in a deed who is the buyer of the real estate or the person receiving the property from another
Per Stirpes. When a beneficiary receives a gift in a will or trust, per stirpes, it means that if the beneficiary dies before the willmaker or trustmaker, that beneficiary’s descendants receive the gift.
Agent. An agent is a person acting on behalf of another, the Principal. The appointment of an agent is typically done through a written document, such as a power of attorney.
Patient Advocate. A patient advocate is an agent who makes medical and mental health care decisions for a disabled principal
Will. A will is a document in which you leave instructions to take effect after your death. The two main instructions, among others, that you have in your will are: 1) the naming of your personal representative to be appointed by the court to handle your stuff; and 2) instructions about who is going to get what.
Living Will. Many people are confused about living wills. A living will is a document in which you leave instructions regarding withholding or withdrawing life support in the event you are being kept alive artificially. Basically it is when to pull the plug.. Living wills are also called Advanced Directives or Advanced Medical Directives. In Michigan, the living will provisions are typically included in your durable power of attorney for health care, although you may have a separate living will for convenience purposes. A living will is only effective during your lifetime.
Durable Power of Attorney for Health Care. Also called a Designation of Patient Advocate, this document allows a patient advocate to make medical and mental health care treatment decisions for you when you are unable to do so for yourself. This document is only good during your lifetime and expires with you. Among other things, we recommend that five key provisions be included in your durable power of attorney for health care: 1) Appointment of a patient advocate with at least two back-ups; 2) Power to make mental health care treatment decisions; 3) anatomical gift/organ donation powers; 4) Health Insurance Portability and Accountability Act (HIPAA) access and release powers; and 5) Living will provisions.
Durable Financial Power of Attorney. This document allows an agent, also called an Attorney-in-Fact, to make decisions regarding your property and financial affairs for you when you are unable to do so for yourself. This document is also only good during your lifetime and expires with you. Broad gifting powers should be included in this document if in the event of a nursing home admission, you want your assets to go to loved ones instead of the nursing home.
Guardianship. A guardianship is a court proceeding in which the probate court appoints and supervises an agent, called a Guardian, to make medical and mental health care treatment decisions for you when you are unable to do so for yourself. In most instances, a properly drafted durable power of attorney for health care can avoid a guardianship.
Conservatorship. A conservatorship is a court proceeding in which the probate court appoints and supervises an agent, called a Conservator, to make decisions regarding your property and financial affairs for you when you are unable to do so for yourself. In most instances, a properly drafted durable financial power of attorney can avoid a conservatorship.
Living Trust. Also called a Revocable Living Trust, this is a document in which you appoint an agent, called a Trustee, and leave instructions to manage and distribute your property both during your lifetime and after your death. It is kind of like a financial power of attorney and will rolled into one document, and then some. It is revocable in that you can revoke, amend or change it during your lifetime. It usually only becomes permanent upon your mental disability or death.
By: Matthew M. Wallace, CPA, JD
Published edited January 11, 2015 in The Times Herald, Port Huron, Michigan as: How to speak legalese