Wills Terminology: Defining Commonly Used Legal Terms

We break down commonly-used Wills terminology you might encounter while Estate planning.

• Will/Last Will and Testament

  A “Will”, sometimes known as a “Last Will and Testament”, is a document that expresses an individual’s wishes with respect to property and dependents, should they pass away. Typically, a Will appoints someone to gather and distribute the Will-maker’s property upon death, names one or more beneficiaries to receive the Will-maker’s assets contains instructions regarding burial or cremation and appoints a guardian for any minor children or dependents of the Will-maker.

• Testator

  A “Testator” is an individual who writes a Will or instructs a lawyer to write a Will on their behalf. “Testator” is the legal term for a “Will-maker” or the individual who signs the Will and whose wishes and instructions the Will contains.

• Executor

  An Executor is responsible for, among other things, locating, gathering, and distributing the deceased’s property. Typically, a Testator appoints someone in their Will to fulfill this role. Executors are also responsible for locating and notifying beneficiaries of the deceased’s passing and of the nature of each beneficiary’s share of the Estate. Other Executor responsibilities include filing tax returns, closing bank accounts, giving notice to creditors, and, where appropriate, applying for a Grant of Probate or a Grant of Administration.

• Read our Wills Frequently Asked Questions (FAQs)

• Personal Representative

  Personal Representative” is another term for “Executor”—the two terms are used interchangeably. While “Executor” is the term most typically used in common conversation or in older Wills, the proper term according to Alberta legislation is “Personal Representative”.

• Beneficiary

  A beneficiary is a person named in the Will by the Testator, who is entitled to receive assets from the Estate.

• Specific Bequest

  A specific bequest is a testamentary (made in the Will) gift to one or more beneficiaries. For example, a Will may create a specific bequest as follows: “I DIRECT my Personal Representative to transfer my 1969 Chevrolet Camaro to my brother, John Doe, for his own use and benefit absolutely.”

• Residue

  The Residue of the Estate is what is left after all taxes, debts, Executor compensation, specific bequests, legal fees, accounting fees, and all other obligations of the Estate have been paid.

• A Will should always name at least one residuary beneficiary. For example, if an Estate is worth $100,000.00, owes $10,000.00 in taxes, has other Estate obligations of $5,000.00, and is required to make a specific bequest of $10,000.00, there should be an amount of $75,000.00 left that comprises the residue of the Estate and is distributed to the residuary beneficiaries named in the Will.

• Guardian

  If a Testator has minor children, or any other dependents, including a loved one without capacity or who has a disability, the Testator’s Will should appoint a guardian. The guardian becomes responsible for the care and provision of the minor children and other dependents when the Testator passes away.

• Survivor

  Hit reality T.V. shows aside, the term “Survivor” in a Will doesn’t usually refer to a beneficiary’s children or descendants as many people think, but rather it refers to one or more beneficiaries who are still alive out of a group of beneficiaries.For example, if the Will says: “The residue of my estate shall be distributed between John, Sally, and Joe in equal shares, or the survivor(s) of them…”, it means that if John and Joe die, Sally is the survivor and is entitled to the entire residue of the Estate.

• Trustee

  The term “trustee” is used in various areas of law. A trustee holds and cares for property on behalf of, and for the benefit of, the ultimate or beneficial owner.In Wills & Estates law, the Executor, or Personal Representative, is a “trustee” of all Estate property from the time of death until all such property has been distributed unless the Will stipulates otherwise. As such, you may see the term “trustee” used in a Will, and most typically it refers to the Executor or Personal Representative.

• Personal Representative vs Executor vs Trustee ???

• Codicil

  A codicil is an attachment or an addendum to an existing Will. Usually, it replaces one or more paragraphs of the existing Will, to which it is attached, with the new language. A codicil is typically a way of reducing expenses for clients who wish to update their Will without paying a lawyer to draft a new Will altogether.

• Testamentary Trust

  A testamentary trust is a trust created by a Will. A trust is a legal instrument whereby a Trustee holds a person’s property for their benefit. The most common testamentary trust is one for the benefit of minor beneficiaries. For example, a Will may leave $50,000.00 to a child until such time as said child attains the age of 18. Such language creates a testamentary trust because that $50,000.00 is held in trust by the Executor on behalf of, and for the benefit of, the minor beneficiary until they turn 18.

• Executrix

  “Executrix” is an outdated term for a female Executor. The term Executrix may still show up from time-to-time in older Wills or on land titles documents, but it is generally no longer used, and both “Executor” and “Executrix” have been formally replaced by the term “Personal Representative” in Alberta.

• Estate

  Most people are familiar with the term “real estate”, which refers to land, a house, or a condominium. Likewise, “estate” in the Wills & Estates context refers to all assets of a deceased individual that don’t have a joint account holder or a named beneficiary—this may include land and buildings, but also personal belongings, bank accounts, vehicles, investments, and anything else that the deceased person owned at the time of their death.

• Descendants

  While there’s a 1980’s punk rock band by the same name, in a Wills & Estates law context, “descendants” refer to anyone who has descended from another individual. Typically, the term “descendants” is used to refer to children and grandchildren, but it also includes great-grandchildren, and great-great-grandchildren, etc. If I leave my Estate to my descendants, and my children have passed away, but my grandchildren are still alive, then my grandchildren, as my descendants, will be entitled to receive my Estate assets.

• Security

  Security is an amount of money that the Alberta courts sometimes require an out-of-province Executor to post with the Court as a “bond” to ensure that they fulfill their duties as Executor while residing outside Alberta. Oftentimes, a Will includes a clause that states that the Executor is to “be relieved from giving bond or security” regardless of whether or not they live in Alberta. This clause is often added to Wills by lawyers who, usually rightfully, assume that the Testator has chosen someone trustworthy to act as their Executor, rendering security an unnecessary hardship for an out-of-province Executor.

• Predeceased

  When a Will contains the term “predeceased”, it usually means “died before”. While this may seem commonsensical, it’s important to look at the Will’s interpretative clauses, as they may deem someone who dies within 30 or 60 days of the Testator to have predeceased the Testator, even though, of course, they died after the Testator in a literal sense.

• Executor Compensation

  Executor compensation is an amount of money paid to an Executor from the Estate for the time, energy, and expertise that they have expended in fulfilling their obligations to the Estate. A well-drafted Will should specify how much compensation an Executor is to receive, or, if the Testator doesn’t intend for the Executor to be compensated, the Will should say so. The reason for this is that the legislation allows Executors to set their own compensation, within reason, when the Will is silent on Executor compensation. It’s also worth keeping in mind that Executors are, by law, entitled to reimbursement for out-of-pocket expenses that they incur while administering an Estate, regardless of whether or not the Will grants them Executor compensation.

• Will-Maker

  “Will-maker” is a term used to describe the Testator, or the person whose wishes the Will contains. Typically, a Testator instructs a lawyer to draft a Will on their behalf or drafts a Will themselves.

• Holograph Will

  Section 16 of the Wills and Succession Act contemplates the validity of so-called Holograph Wills. The legislation is clear that “a Will may be made by a writing that is wholly in the testator’s own handwriting and signed by the testator without the presence or signature of a witness or any other formality.”

• In other words, a testator, or the person giving the Will, can write their own, fully valid Will, provided that it is in the testator’s own handwriting and is signed by the testator only, with no other persons present, and no other formalities, such as an affidavit of execution, attached to the Will.

Still Have Questions?

While we hope that you’ve found the above definitions to be helpful, we recommend that everyone has a valid, up-to-date Will in place. The Estate planning lawyers at West Legal welcome an opportunity to meet with you for a free-of-charge, no-obligation consultation to discuss your Will plan.

During an Estate planning consultation, the Wills and Estates lawyers at West Legal can help you better understand the often confusing legal terminology that surrounds the Estate planning process and can guide you towards the Will plan that’s best for you and your family.