During the Probate, Trust & Estate Administration process in North Carolina, you may encounter a lot of different legal terminology. Here are some common terms that you may encounter:
If the Decedent did not have a Will, the person appointed by the Court to administer the Estate is referred to as the Administrator.
An Attested Will or Attested Last Will and Testament is a Will signed by the Testator and two competent witnesses.
A person named in the Will or Trust to receive assets or property of the Decedent is referred to as a Beneficiary.
Clerk or Clerk of Court
Probate and Estate Administration is overseen by the Estates Proceeding section of the Superior Court in the county in which the Decedent resided at the time of Decedent’s death. The Clerk of Court is an elected position that has numerous judicial functions, including matters relating to the Probate and Administration of Estates. The Clerk of Court then appoints numerous Deputy Clerks to help carry out these duties. During the Estate Administration process, you’ll frequently hear reference to the Clerk or the Clerk’s office or similar, as a generic reference to interaction with the Court.
An individual or company that is owed money by the Decedent at the Decedent’s time of death is a Creditor of the Estate.
A person who has died is referred to as a Decedent.
A Disclaimer or Renunciation is when an individual has a certain right, such as the right to be a Beneficiary or the right to serve as Administrator, but signs a legal document giving up such right.
The Estate consists of the collective money, assets, property, property rights, and real estate owned by a person or Decedent.
The legal process for gathering, inventorying, and then distributing the Decedent’s assets and property to Creditors, Beneficiaries, and Heirs.
The person named by the Decedent in the Decedent’s Will to be appointed by the Court to administer the Estate is referred to as the Executor. Because the term “Executor” is the one most commonly understood by the general public, this guide has used the term Executor to also include Administrator or Personal Representative, but technically, from a legal term definition, the term “Executor” only refers to someone specifically nominated in the Decedent’s Will.
The person who created a Trust. A Trustmaker may also be referred to as the Settlor or Trustmaker.
An Heir is a person who would potentially inherit from the Decedent under North Carolina law if the Decedent died without a Will.
A Holographic Will is a handwritten Will written entirely in the Testator’s own handwriting and signed by the Testator.
An Insolvent Estate is an Estate where the Estate assets are insufficient to pay the debts, claims, taxes, and administrative expenses of the Estate.
The State laws that determine who the assets of a Decedent will be distributed to in the absence of a valid Last Will and Testament.
An Intestate Estate is an Estate where there is no valid Last Will and Testament. North Carolina law provides specific guidance for determining the Heirs of an Intestate Estate.
Refers to the assets of a Decedent that are being administered in accordance with the Intestacy Laws.
Last Will and Testament
A Last Will and Testament, or Will, is a legal document communicating a person’s wishes pertaining to the care of any dependents such as minor children and the distribution of their possessions.
The person named in the Will as Executor of the Estate is the Nominated Executor. The Nominated Executor does not legally have any authority to act on behalf of the Estate until formally being appointed by the Court as Executor of the Estate and taking an Oath to carry out the fiduciary duties of the role of Executor.
A Nuncupative Will is an oral “deathbed” Will dictated before two witnesses who were specifically requested to bear witness.
Personal Representative is a generic term that refers to either an Executor or Administrator.
An individual who signs and files a motion or petition with the Court is referred to as a Petitioner. For example, one might petition the Court to open the Estate and be appointed as Executor. Or, one might petition the Court to contest the validity of the Will.
The technical definition of Probate is the legal process of submitting the Decedent’s Will to the Court and having the Court deem that the document is the legal Last Will and Testament of the Decedent. Generally, when people use the term Probate, they are collectively referring to the Probate and Estate Administration process overall, but from a technical definition perspective, Probate and Estate Administration are two separate components of settling a Decedent’s estate.
A Renunciation or Disclaimer is when an individual has a certain right, such as the right to be a Beneficiary or the right to serve as Administrator, but signs a legal document giving up such right.
The person who created a Trust. A Trustmaker may also be referred to as the Grantor or Trustmaker.
A Testate estate is an Estate where there is a valid Last Will and Testament.
Refers to the assets that are being administered in accordance with the Decedent’s Last Will and Testament.
The Testator is a person that executed a Last Will and Testament.
A legal entity created by one party (referred to as either the Grantor, Settlor, or Trustmaker) which appoints a second party (referred to as the Trustee) to hold and manage any assets placed in the Trust for the benefit of a third party (the Beneficiary). Depending upon the nature of the Trust, a party may serve in more than one of the roles.
Trust Corpus or Trust Estate
The Trust Corpus, also known as the Trust Estate, consists of the collective money, assets, property, property rights, and real estate titled to a Trust.
The Trustee is the individual or company nominated by the maker of the Trust to manage the Trust assets in accordance with the instructions given within the Trust document.
The person that created a Trust. A Trustmaker may also be referred to as the Grantor or Settlor.
A Will, or Last Will and Testament, is a legal document communicating a person’s wishes pertaining to the care of any dependents such as minor children and the distribution of their possessions.