Wills, Trusts, Capacity and Probate Glossary

Our glossary of terms relating to Wills, Trusts, Capacity and Probate can be found below.

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Administration of Estate

Dealing with the affairs and the estate of a person who has died, including collecting their assets, paying their debts and ensuring that the terms of the Will or the Intestacy Rules are adhered to.

Administrator

The person 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.

Agricultural Property Relief (APR)

Relief from inheritance tax for the agricultural value of some farms and farmhouses (the value if the land & buildings could only be used for agricultural purposes and not the open market value). Various conditions apply including a minimum ownership period.

Beneficiary

A person or organisation who will receive assets from the estate of the deceased.

Business Property Relief (BPR)

Relief from inheritance tax for businesses – a minimum ownership period applies and the business or interest in the business must fulfil the conditions.

Capital Gains Tax (CGT)

This is tax which may be payable on a disposal (for example when you sell an asset) if you make a chargeable gain. Usually you have made a gain if the asset is worth more at disposal than it was when you acquired it. A disposal is not only a sale for moneys worth. You will only pay CGT on capital monies i.e. monies that you received that do not form part of your income. The tax applies not to the value of the asset but to the increase in value.

Chattels

Assets of a person, other than land, for example jewellery, ornaments, clothes, cars,, furniture and so on.

Codicil

A document which may change, modify, delete, extend or add to a Will.

Court of Protection

This is a Court which can make decisions in relation to the property and affairs and personal welfare of adults (and children) who lack the mental capacity to make decisions for themselves. The Court has the same powers as the High Court and can make a wide range of decisions and orders including the appointment of Deputies or a declaration as to whether a person has capacity. The Court of Protection works closely with the Office of the Public Guardian – see below.

Deed of Variation

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). This must be done within 2 years of the person’s death to be effective for Inheritance Tax Purposes.

Deputyship

Formerly known as Receivership, this 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. The Office of the Public Guardian keeps a register of Deputies and supervises the Deputy as they manage the affairs of the person who does not have capacity. Deputyship can relate to personal welfare decisions as well as to the management of property and affairs.

Domicile

HMRC define Domicile as follows:

Domicile is not the same as nationality or residence. Your domicile is decided under general law, which means it must be interpreted according to previous rulings of the courts. Questions of domicile can be complex but broadly speaking, you have your domicile in the country that is your 'real' or permanent home which, if you have left, you intend to return to.

Discretionary Trusts

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

The property and assets of the person who has died.

Executor

This is the personal representative (see below) who has been appointed by the Will or Codicil.

Guardian

A guardian 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 are to live, their education, what surname they should be known by etc. Guardians may be appointed by a parent who has parental responsibility, an existing guardian or the Court. If you name a guardian in your Will the appointment may not take effect if your child has a surviving parent with parental responsibility.

Inheritance Tax (IHT)

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.

Intestacy Rules

The rules that govern where a person’s estate is to pass and who can deal with the estate in the absence of a Will.

Issue

Children, grandchildren, great-grandchildren and so on.

Joint Tenancy

This effectively means that each of the owners will have an equal share in the property. If a property is held in this way, the principle of survivorship will apply to the land. This effectively means that on the death of the first person, the share of the property they owned would pass automatically to the surviving owner and would do so outside the terms of any Will. The land would still be part of the estate for Inheritance Tax purposes but could not be dealt with by the terms of the deceased owner’s Will.

Lasting Power of Attorney

A Lasting Power of Attorney can relate to your property and affairs or your personal welfare i.e. decisions about your medical treatment. In order to make a Lasting Power of Attorney you must have mental capacity to do so which must be certified by a certificate provider. An ordinary General Power of Attorney will come to an end if you lose your mental capacity but a Lasting Power of Attorney will not.

Legacies

A legacy is a specific gift left within the Will to an organisation or individuals. There are different types of legacy:

Pecuniary legacy

A gift of cash.

Specific legacy

This is a gift of an object, for example a gift of a property, shares, personal belongings etc.

Letters of Administration

A grant of representation where there is no valid Will, or there is a Will but no Executor appointed.

Life Tenant

This is a person who is entitled to benefit from a trust during their lifetime. They cannot have the capital in the trust fund; they are entitled only to the income or enjoyment of the property, for example, if the trust fund was a house the beneficiary would be entitled to live there.

Office of the Public Guardian (OPG)

Formerly known as the Public Guardianship Office (PGO) this Office supports the Public Guardian in helping people who do not have mental capacity by setting up a register of Enduring and Lasting Powers of Attorney and a register of Deputies. The OPG supervises Deputies. The OPG works closely with the Court of Protection see above.

Personal Representative

The person responsible for administering the estate of the deceased. They may be the Executors or Administrators of the estate.

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.

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 behalf of their principal. Power of Attorney may be an ordinary General Power or it may be a Lasting Power of Attorney.

Residue

The remainder of the estate of the person who has died after all their debts have been paid and any specific gifts they make under their Will have also been paid.

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. There are formal requirements for revocation of a Will as there are for making a Will.

Severance of Tenancy

The document required to change the ownership of a property from Joint Tenants to Tenants in Common.

Tenancy in Common

The land can be separated into different shares and does not have to be owned equally between the parties. In this situation, on the death of an owner of the land, the share of property owned by the deceased proprietor will pass according to the terms of their Will. Therefore, it can be referred to specifically as a legacy or could fall into the residue of the estate and be distributed accordingly.

Testamentary Expenses

The costs of obtaining the Grant of Probate or Letters of Administration and of administering the estate.

Testator/Testatrix

The person making a Will (Male or Female).

Trust

One or more persons hold property for the benefit of others (the beneficiaries). A Trustee is the person who is acting in the trust and holds the property for the benefit of someone else.

Will

The formal document by which a Testator/Testatrix confirms their wishes as to the division of their estate on death.