Will Writing & Legal Terminology Explained

Legal Terminology Explained…

Testator – this is the person who makes the Will.

Executor – this is the person/s who carries out the testator’s wishes.

Beneficiary – is a person/s to whom a gift is left. 

Trustee – is a person/s who manages a trust set up for a beneficiary.

Guardian – is a person/s who will have parental responsibility for any child under the age of 18.  Parental responsibility means the legal authority to act in relation to a child on such matters as medical care, where they live, education etc. If you name a guardian in your Will the appointment may not take effect if your child has a surviving parent with parental responsibility.

Administrator – is a person/s dealing with the estate of someone who has died without a Will.  The estate will be dealt with in accordance with the Intestacy Rules and only certain people are able to act as an Administrator.

Deputyship – this was formerly known as “Receivership”, and is the process by which the Court of Protection appoints a Deputy to deal with the affairs of a person who has lost mental capacity (i.e. is not capable of managing their own affairs) and did not have an Enduring or Lasting Power of Attorney in place. Deputyship can relate to personal welfare decisions as well as to the management of property and affairs.

Personal Representative – this is the person responsible for administering the estate of the deceased.  They may be the Executors or Administrators of the estate.

Power of Attorney – this a formal document giving legal authority from one person (the donor) to another (the attorney) so that the Attorney may act on their behalf. Power of Attorney may be an ordinary General Power or it may be a Lasting Power of Attorney. There are 2 types of LPA : health and welfare. property and financial affairs.

Discretionary Trusts – this is a trust where the “Trustees” can choose which beneficiaries (if any) should receive income and or capital. They are a flexible way of setting property aside for the benefit of one or more persons.

Estate – this is the property and assets of the person who has died.

Chattels – these are the assets of a person, other than land. Assets such as jewellery, art, cars, clothes, furniture and so on.

Legacies – a “legacy” is a specific gift left within a Will to an organisation or individuals, such as a charity.  There are different types of legacy and these include: “Pecuniary legacy” – a gift of cash; or a “Specific legacy” – a gift of an object, such as property, shares or personal belongings.

Administration of Estate – the administration is dealing with the affairs and the estate of a person who has died. This admin may include collecting their assets, paying their debts and ensuring that the terms of the Will or the Intestacy Rules are adhered to.

Codicil – this is a document which may change, modify, delete, extend or add to a Will.

Revocation (of Will) – this is the process by which someone cancels or takes back a Will (or Codicil) made previously when they no longer intend that Will to take effect.  The Testator (person who made a Will or Codicil) must have mental capacity to revoke the Will (or Codicil).  The effect of revocation is that any earlier Will is resurrected and will take effect as if the later cancelled Will does not exist.  If there is no previous Will then the person revoking their Will becomes intestate. *Most new Wills contain an explicit clause stating that they revoke any previous Wills. 

Deed of Variation – this is a document that can vary the division of a person’s estate after they have died, either by changing their Will retrospectively, or altering the persons entitled on an intestacy (where there is no Will or the beneficiaries no longer exist).

Inheritance Tax (IHT) – this is a tax on the value of a person’s estate on their death and also on the value of certain gifts made by an individual during their lifetime.  You may be subject to Inheritance Tax on all your assets everywhere in the world if you are domiciled in England & Wales.  Inheritance Tax also applies to most types of trusts and may be charged when assets are added to or leave the trusts and on the ten yearly anniversaries of the trust’s creation.

Potentially Exempt Transfer (PET) – this is an outright gift lifetime by an individual to another individual, or certain types of trusts. If the giver (donor) survives the gift by seven years it will become completely exempt from inheritance tax – it will be outside the donor’s estate for the purposes of calculating inheritance tax.