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Vocabulary for New York Wills and Surrogate’s Court Matters

Sometimes the law is a language unto itself… here’s a helpful guide to some terms of art.

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{Read in 5 Minutes}  As a Trusts and Estates attorney, I am always fascinated by my day-to-day practice. After almost 20 years exclusively in this field, I have yet to come across a boring day. Why is this? It’s because the law of trusts and estates is unique in that (1) there are concepts within it that are hundreds of years old and (2) there are also revisions made to the law on an annual basis. It is the hybrid of classical and emanating.

That said, this area of the law comes with a lot of vocabulary that is equally unique and might be confusing to those people not familiar with the field. While in general, my pet peeve is legal terms and legal documents that are not written in a way that people can readily understand them, I am aware that now and then my clients will come across some terms that may seem very unfamiliar to them. I thought I would spend some time in this article reviewing some of the most common terms. While this article could easily go on for hundreds and hundreds of words, I’ve tried to limit it to the following seven phrases.

1. Administrator: An Administrator is a fiduciary of an Estate that the Surrogate’s Court appoints when a person dies intestate (without a Will). In this situation everything would go to the surviving spouse, or next-of-kin of the deceased. The Surrogate’s Court gives the Administrator Letters of Administration.

2. Distributee: Distributee is a fancy ten-dollar legal word for next-of-kin. Specifically, it means members of the next-of-kin who are entitled to inherit when someone dies intestate. Not all members of the next-of-kin are necessarily entitled to inherit; the word distributee only applies to those who are.

3. Estate: An Estate is an entity that handles the affairs of a deceased person. The Estate does not come into existence until the deceased is dead and will continue until the fiduciary of the Estate distributes the funds to the beneficiaries.

4. Executor: An Executor is a person who receives Letters Testamentary from the Surrogate’s Court. A Will nominates a person to serve as the Executor and the person only receives their appointment when the Surrogate’s Court approves. Being an Executor is a lot of work. The Executor has a lot of responsibility and if they do not do the job properly the Surrogate’s Court can remove them. 

5. Issue: Issue is a legal term of art that refers to the linear descendants of the deceased. Issue would include children, grandchildren, great-grandchildren, et cetera. Not all members of the class of issue are distributees (see above).

6. Per stirpes: Per stirpes is Latin. It means “by the roots” of the family tree. Under a per stirpes distribution, a deceased will leave their assets to their children. If any of their children have predeceased (died before) the deceased, their children will take the deceased parents’ share. This may result in equal or unequal shares among generational levels.

Example: The deceased has three adult children known as A, B, and C. A survives the deceased, B dies before the deceased leaving one surviving child, and C dies before the deceased leaving two surviving children. Under a per stirpes distribution, A would get one-third of the Estate. B’s one-third share would descend down the family tree to B’s child, who would take that one-third share. For C’s one-third share, it would also descend the family tree, but it would go to their surviving children in equal shares. Because two children survived C, each would split C’s one-third or take a one-sixth share each.

7. Testator: a person who makes a Will. The word Testator is related to the word testament. Whenever you see the word Testator, testamentary, testament, et cetera, you know it has something to do with a Will.

As I mentioned above, this is just a little taste. We could have put dozens and dozens of definitions here, but I decided to include these because they are among the most common terms that people come across when dealing with Wills and Surrogate’s Court proceedings in New York.

For further information on this topic, please contact me.