Terminology in a Will: Common terms explained – Hints for Italians

Heirs or Testators of English-language wills are often puzzled by the formulaic redundant expression “I give, devise and bequeath,” used when specifying how a testator’s estate should be divided upon his death.

Strictly speaking, a “devise” (verb: “to devise”) is a testamentary gift of real property (donazione di beni mobili), the beneficiary of which is known as a “devisee.” In contrast, a “bequest” (verb: “to bequeath”) usually refers to a testamentary gift of personal property (donazione di bene mobile), often excluding money. In modern American usage “devise” is used to denote a testamentary gift of both real and personal property,* although the distinction between “devise” and “bequest” largely persists in British usage. “Legacy”- lascito  is likewise a gift by will, especially of personal property and often of money, the beneficiary of a legacy being known as a “legatee.” And, of course, devises, bequests and legacies may all be equally described as “testamentary gifts.”

The same can often be said for other ‘legal’ terms used in a Will.  Whilst we at Cesca Accounting strive to use clear and everyday language when dealing with our clients, in will writing, as with the preparation of many legal documents, it is often difficult to avoid the use of ‘legal’ terms.

Lawyers specialising in will writing will likely come across many of the terms on a daily basis, but to a person setting out to make the first will, some of these terms may make the process feel daunting and unknown.

Your ‘free’ estate – patrimonio ereditario  describes the assets capable of passing under the terms of a will. This therefore covers all assets not dictated to pass by any other method

Your residuary estate –  comprises all that is left of your free estate after debts, taxes and any legacies have been paid.

Chattels – a legal term, defined in law (s.55(1)(x) Administration of Estates Act 1925), which encompasses most items that you would find in your home and extends to include your pets and your car.

Intestate – the description of a person who has died with a will.

‘Intestacy’ – the situation in which a person’s estate is not distributed by a will but, instead, by law (S.46 Administration of Estates Act 1925).

Executor – executrix – Esecutore testamentario individual / individuals/organisation appointed in a will to ensure the testator’s wishes are followed after death. They have a legal responsibility to carry out the wishes in the will and to collect in the assets and administer the estate in accordance with the law. “” although, again, many acknowledge that this is a little archaic.

Guardian – tutore a person who is appointed by someone who has parental responsibility for a child under 18, to have parental responsibility for that child until they reach 18 in the event of their death. The appointment of a guardian need not be made in a will.  However, an executed will fulfils the legal requirements of appointment and ensures that it is recorded together with the rest of your wishes.

Parental responsibility  is the legal term for the rights and responsibilities which a parent or guardian has in relation to a child – natural or adopted child but not a step-child in included.

Trust – an arrangement where assets are looked after by trustees for a period of time as defined in the trust document rather than passed on to the beneficiaries (defined below) absolutely immediately. A trust can be set up during your lifetime or by will and whilst there are various types, the two below are often relevant when dealing with wills:

Statutory trust – comes into effect where a legacy or share of an estate is left to a beneficiary who is under age and where no other trust provision is made in the will. The minimum age at which a child could take their inheritance outright, in law, is 18

Discretionary trust – where assets are placed in the care of trustees who then administer them with discretion, often defined within the trust, as to when, how and to whom to distribute those assets.  By its very nature, this type of trust is extremely flexible and allows the trustees to take into account changes in circumstances as time goes on or simply define interests and dividends calculation before distribution to beneficiary.

Trustee – a person/persons or corporation which holds or administers assets for the benefit of a third party, known as a beneficiary. If a trust arises under the terms of your will (for example if there is a beneficiary who is too young to inherit their legacy or there is to allocate investments and funds properly at the date of your death) then your executors will often, but not always, be the persons named as trustees of the trust. This places further importance on the considerations that should be made in appointing an executor and trustee

Beneficiary – a person who is to receive a legacy or share of an estate under the terms of a will / trust.

Joint tenants – the term used to describe a form of property ownership where the ownership is collective and the specific shares of each owner are not defined. When on co-owner dies, their share of the property automatically passed to the other co-owners

Tenancy in common – a term used to describe a form of joint property ownership where each owner’s share is distinct from the others. Each co-owner can freely deal with their own distinct share during their lifetime and on death i.e. by will.

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