 |
|
Legal TerminologyAB trust A trust that allows couples to reduce or avoid estate taxes. Each spouse puts his or her property in an AB trust. When the first spouse dies, his or her half of the property goes to the beneficiaries named in the trust -- commonly, the grown children of the couple -- with the crucial condition that the surviving spouse has the right to use the property for life and is entitled to any income it generates. The surviving spouse may even be allowed to spend principal in certain circumstances. When the surviving spouse dies, the property passes to the trust beneficiaries. It is not considered part of the second spouse's estate for estate tax purposes. Using this kind of trust keeps the second spouse's taxable estate half the size it would be if the property were left directly to the spouse. This type of trust is also known as a bypass or credit shelter trust. abandonment (of a child) A parent's failure to provide any financial assistance to or communicate with his or her child over a period of time. When this happens, a court may deem the child abandoned by that parent and order that person's parental rights terminated. Abandonment also describes situations in which a child is physically abandoned -- for example, left on a doorstep, delivered to a hospital or put in a trash can. Physically abandoned children are usually placed in orphanages and made available for adoption. abandonment (of a spouse) See desertion. abandonment (of trademark) A situation in which the owner of a trademark or service mark does not use the mark for an extended period of time, fails to protest the unauthorized use of the mark by others or lets others use the mark without adequate supervision. If a trademark is abandoned, the owner loses her exclusive rights to the mark. abatement A reduction. After a death, abatement occurs if the deceased person didn't leave enough property to fulfill all the bequests made in the will and meet other expenses. Gifts left in the will are cut back in order to pay taxes, satisfy debts or take care of other gifts that are given priority under law or by the will itself. abstract of title A short history of a piece of land that lists any transfers in ownership, as well as any liabilities attached to it, such as mortgages. abstract of trust A condensed version of a living trust document, which leaves out details of what is in the trust and the identity of the beneficiaries. You can show an abstract of trust to a financial organization or other institution to prove that you have established a valid living trust, without revealing specifics that you want to keep private. In some states, this document is called a certification of trust. abuse Misuse of the Chapter 7 bankruptcy remedy. This term is typically applied to Chapter 7 bankruptcy filings that should have been filed under Chapter 13, because the debtor appears to have enough disposable income to fund a Chapter 13 repayment plan. accessory Someone who intentionally helps another person commit a felony by giving advice before the crime or helping to conceal the evidence or the perpetrator. An accessory is usually not physically present during the crime. For example, hiding a robber who is being sought by the police might make you an accessory after the fact to a robbery. Compare accomplice. accompanying relative An immediate family member of someone who immigrates to the United States. In most cases, a person who is eligible to receive some type of visa or green card can also obtain green cards or similar visas for accompanying relatives. Accompanying relatives include spouses and unmarried children under the age of 21. accomplice Someone who helps another person (known as the principal) commit a crime. Unlike an accessory, an accomplice is usually present when the crime is committed. An accomplice is guilty of the same offense and usually receives the same sentence as the principal. For instance, the driver of the getaway car for a burglary is an accomplice and will be guilty of the burglary even though he may not have entered the building. accord and satisfaction An agreement to settle a contract dispute by accepting less than what's due. This procedure is often used by creditors who want to cut their losses by collecting as much money as they can from debtors who cannot pay the full amount. accumulation trust A trust in which the income is retained and not paid out to beneficiaries until certain conditions are met. For example, if Uncle Pierre creates a trust for Nick's benefit but stipulates that Nick will not get a penny until he gets a Ph.D. in French; Nick is the beneficiary of an accumulation trust. acknowledged father The biological father of a child born to an unmarried couple who has been established as the father either by his admission or by an agreement between him and the child's mother. An acknowledged father must pay child support. acknowledgment A statement you make in front of a notary public or other person who is authorized to administer oaths stating that a document bearing your signature was actually signed by you. acquittal A decision by a judge or jury that a defendant in a criminal case is not guilty of a crime. An acquittal is not a finding of innocence; it is simply a conclusion that the prosecution has not proved its case beyond a reasonable doubt. act of God An extraordinary and unexpected natural event, such as a hurricane, tornado, earthquake or even the sudden death of a person. An act of God may be a defense against liability for injuries or damages. Under the law of contracts, an act of God often serves as a valid excuse if one of the parties to the contract is unable to fulfill his or her duties -- for instance, completing a construction project on time. act of nature See act of God. action Another term for a lawsuit. For example, a plaintiff might say, I began this negligence action last fall after the defendant, Ms. Adams, struck me while I was crossing the street at Elm and Main. actual damages See damages. actus reus Latin for a guilty act. The actus reus is the act which, in combination with a certain mental state, such as intent or recklessness, constitutes a crime. For example, the crime of theft requires physically taking something (the actus reus) coupled with the intent to permanently deprive the owner of the object (the mental state, or mens rea). ADA See Americans With Disabilities Act. ADEA See Age Discrimination in Employment Act. ademption The failure of a bequest of property in a will. The gift fails (is adeemed) because the person who made the will no longer owns the property when he or she dies. Often this happens because the property has been sold, destroyed or given away to someone other than the beneficiary named in the will. A bequest may also be adeemed when the will maker, while still living, gives the property to the intended beneficiary (called ademption by satisfaction). When a bequest is adeemed, the beneficiary named in the will is out of luck; he or she doesn't get cash or a different item of property to replace the one that was described in the will. For example, Mark writes in his will, I leave to Rob the family vehicle, but then trades in his car in for a jet ski. When Mark dies, Rob will receive nothing. Frustrated beneficiaries may challenge an ademption in court, especially if the property was not clearly identified in the first place. adjustable rate mortgage (ARM) A mortgage loan with an interest rate that fluctuates in accordance with a designated market indicator -- such as the weekly average of one-year U.S. Treasury Bills -- over the life of the loan. To avoid constant and drastic fluctuations, ARMs typically limit how often and by how much the interest rate can vary. administration (of an estate) The court-supervised distribution of the probate estate of a deceased person. If there is a will that names an executor, that person manages the distribution. If not, the court appoints someone, who is generally known as the administrator. In some states, the person is called the personal representative in either instance. administrative expenses The trustee's fee, the debtor's attorney fees, and other costs of bringing a bankruptcy case that a debtor must pay in full in a Chapter 13 repayment plan. Administrative costs are typically 10% of the debtor's total payments under the plan. administrator A person appointed by a probate court to handle the distribution of property of someone who has died without a will, or with a will that fails to name someone to carry out this task. administrator ad litem A person appointed by a probate court to represent an estate during a lawsuit. (Ad litem is Latin for during the litigation.) An administrator ad litem is appointed only if there is no existing executor or administrator of the estate, or if the executor or administrator has conflicting interests. For example, Jerry's will leaves most of his property to his brother, Jeff, and also names Jeff as executor of the will. But Jerry's sister, Janine, feels that Jerry made the will under improper pressure from Jeff, and brings a lawsuit to challenge it. The court appoints an administrator ad litem to represent Jerry's estate while the lawsuit is in progress. Also known as administrator ad prosequendum, meaning administrator during the prosecution. administrator ad prosequendum See administrator ad litem.administrator cum testamento annexo See administrator with will annexed. administrator de bonis non (DBN) Latin for administrator of goods not administered. This term refers to the person appointed by a probate court to finish probate proceedings when the executor or previous administrator can't finish the job.administrator de bonis non cum testamento annexo (DBNCTA) A baffling title for an administrator appointed by a probate court to take over probate proceedings when the named executor dies, leaving the job unfinished.administrator pendente lite Latin for administrator pending litigation. This term refers to the person appointed by a court to begin probate proceedings during a lawsuit that challenges the will. The administrator pendente lite takes an inventory of the deceased person's property and handles the business affairs of the estate until the dispute is settled. Also called a special administrator.administrator with will annexed An administrator who takes the place of an executor under a will. The administrator steps in either when a will fails to nominate an executor or the named executor is unable to serve. Also called administrator cum testamento annexo or CTA, the Latin version of with the will annexed. administratrix An outdated term for a female administrator -- the person appointed by a court to handle probate on behalf of someone who died without a will. Now, whether male or female, this person is called the administrator. admissible evidence The evidence that a trial judge or jury may consider, because the rules of evidence deem it reliable. See evidence, inadmissible evidence. admission (1) An out-of-court statement by your adversary that you offer into evidence as an exception to hearsay rule. (2) One side's statement that certain facts are true in response to a request from the other side during discovery. adopt (1) To assume the legal relationship of parent to another person's child. See also adoption. (2) To approve or accept something -- for example, a legislative body may adopt a law or an amendment, a government agency may adopt a regulation or a party to a lawsuit may adopt a particular argument. adopted child Any person, whether an adult or a minor, who is legally adopted as the child of another in a court proceeding. See adoption. adoption A court procedure by which an adult becomes the legal parent of someone who is not his or her biological child. Adoption creates a parent-child relationship recognized for all legal purposes -- including child support obligations, inheritance rights and custody. adoptive parent A person who completes all the requirements to legally adopt a child who is not his or her biological child. Generally, any single or married adult who is determined to be a fit parent may adopt a child. Some states have special requirements, such as age or residency criteria. An adoptive parent has all the responsibilities of a biological parent. ADR See alternative dispute resolution. adult In most situations, any person 18 years of age or older. adultery Consensual sexual relations by a married person with someone other than his or her spouse. In many states, adultery is technically a crime, though people are rarely prosecuted for it. In states that have retained fault grounds for divorce, adultery is always sufficient grounds for a divorce. In addition, some states alter the distribution of property between divorcing spouses in cases of adultery, giving less to the cheating spouse. advance directive See living will. adverse possession A means by which one can legally take another's property without paying for it. The requirements for adversely possessing property vary between states, but usually include continuous and open use for a period of five or more years and paying taxes on the property in question. affiant Someone who signs an affidavit. affirmative action Positive or constructive action rather than inaction. Affirmative action programs and regulations attempt to compensate for discriminatory practices that have in the past denied fair consideration to members of minority groups. For example, an all-white government office may take steps to hire people of color. Or, a mostly-male college program may seek to balance its admissions by giving preference to female applicants. Affirmative action programs are controversial in the present political climate -- many have recently been eradicated or have come under attack -- and the subject is likely to be hotly debated for many years to come. affirmative defense An explanation for a defendant's actions that excuses or justifies his behavior. For example, acting in self-defense is a common affirmative defense to a charge of battery or homicide. Other affirmative defenses include insanity, duress and intoxication. Age Discrimination in Employment Act (ADEA) A federal law that prohibits arbitrary discrimination against workers over the age of 40 in any employment decision, especially firing. The ADEA also provides that no worker can be forced to retire. age of majority Adulthood in the eyes of the law. After reaching the age of majority, a person is permitted to vote, make a valid will, enter into binding contracts, enlist in the armed forces and purchase alcohol. Also, parents may stop making child support payments when a child reaches the age of majority. In most states the age of majority is 18, but this varies depending on the activity. For example, in some states people are allowed to vote when they reach the age of eighteen, but can't purchase alcohol until they're 21. agent A person authorized to act for and under the direction of another person when dealing with third parties. The person who appoints an agent is called the principal. An agent can enter into binding agreements on the principal's behalf and may even create liability for the principal if the agent causes harm while carrying out his or her duties. See also attorney-in-fact. aggravate To make more serious or severe. aggravating circumstances Circumstances that increase the seriousness or outrageousness of a given crime, and that in turn increase the wrongdoer's penalty or punishment. For example, the crime of aggravated assault is a physical attack made worse because it is committed with a dangerous weapon, results in severe bodily injury or is made in conjunction with another serious crime. Aggravated assault is usually considered a felony, punishable by a prison sentence. agreement A meeting of the minds. An agreement is made when two people reach an understanding about a particular issue, including their obligations, duties and rights. While agreement is sometimes used to mean contract -- a legally binding oral or written agreement -- it is actually a broader term, including understandings that might not rise to the level of a legally binding contract. alien registration receipt card (ARC) The official name used in immigration law for a green card. alimony The money paid by one ex-spouse to the other for support under the terms of a court order or settlement agreement following a divorce. Except in marriages of long duration (ten years or more) or in the case of an ailing spouse, alimony usually lasts for a set period, with the expectation that the recipient spouse will become self-supporting. Alimony is also called spousal support or maintenance. allegation A statement by a party in a pleading describing what that party's position is and what that party intends to prove. Allen charge See dynamite charge. alternate beneficiary A person, organization or institution that receives property through a will, trust or insurance policy when the first named beneficiary is unable or refuses to take the property. For example, in his will Jake leaves his collection of sheet music to his daughter, Mia, and names the local symphony as alternate beneficiary. When Jake dies, Mia decides that the symphony can make better use of the sheet music than she can, so she refuses (disclaims) the gift, and the manuscripts pass directly to the symphony. In insurance law, the alternate beneficiary, usually the person who receives the insurance proceeds because the initial or primary beneficiary has died, is called the secondary or contingent beneficiary. alternative dispute resolution (ADR) A catchall term that describes a number of methods used to resolve disputes out of court, including negotiation, conciliation, mediation and the many types of arbitration. The common denominator of all ADR methods is that they are faster, less formalistic, cheaper and often less adversarial than a court trial. In recent years the term Alternative Dispute Resolution has begun to lose favor in some circles and ADR has come to mean Appropriate Dispute Resolution. The point of this semantic change is to emphasize that ADR methods stand on their own as effective ways to resolve disputes and should not be seen simply as alternatives to a court action. Americans With Disabilities Act (ADA) A federal law that prohibits discrimination against people with physical or mental disabilities in employment, public services and places of public accommodation, such as restaurants, hotels and theaters. amicus See amicus curiae. amicus curiae Latin for friend of the court. This term describes a person or organization that is not a party to a lawsuit as plaintiff or defendant but that has a strong interest in the case and wants to get its two cents in. For example, the ACLU often submits materials to support a person who claims a violation of civil rights even though that person is represented by a lawyer. ancillary probate A probate proceeding conducted in a different state from the one the deceased person resided in at the time of death. Usually, ancillary probate proceedings are necessary if the deceased person owned real estate in another state. annual meeting A term commonly used to refer to annual meetings of shareholders or directors of a corporation. Shareholders normally meet to elect directors or to consider major structural changes to the corporation, such as amending the articles of incorporation or merging or dissolving the corporation. Directors meet to consider or ratify important business decisions, such as borrowing money, buying real property or hiring key employees. annuity A purchased policy that pays a fixed amount of benefits every year -- although most annuities actually pay monthly -- for the life of the person who is entitled to those benefits. In a simple life annuity, when the person receiving the annuity dies, the benefits stop; there is no final lump sum payment and no provision to pay benefits to a spouse or other survivor. A continuous annuity pays monthly installments for the life of the retired worker, and also provides a smaller continuing annuity for the worker's spouse or other survivor after the worker's death. A joint and survivor annuity pays monthly benefits as long as the retired worker is alive, and then continues to pay the worker's spouse for life. annulment A court procedure that dissolves a marriage and treats it as if it never happened. Annulments are rare since the advent of no-fault divorce but may be obtained in most states for one of the following reasons: misrepresentation, concealment (for example, of an addiction or criminal record), misunderstanding and refusal to consummate the marriage. answer A defendant's written response to a plaintiff's initial court filing (called a complaint or petition). An answer normally denies some or all facts asserted by the complaint, and sometimes seeks to turn the tables on the plaintiff by making allegations or charges against the plaintiff (called counterclaims). Normally a defendant has 30 days in which to file an answer after being served with the plaintiff's complaint. In some courts, an answer is simply called a response. anticipation In patent law, a situation in which an invention is anticipated by being too similar to an earlier invention to be considered novel. Because novelty is a requirement for a patent, anticipated inventions are not patentable. Anticipation can occur when a prior invention or printed publication matches all of the primary characteristics of the invention, or it can happen when the invention is displayed or offered for sale more than a year prior to filing a patent application. For example, a bird owner invents a device to keep her bird from picking at its tail feathers. She applies for a patent, but her application is rejected on the ground that the same device was in use 3500 years ago in Egypt. In patent-speak, the inventor's creation has been anticipated by previous developments (the prior art.) appeal A written request to a higher court to modify or reverse the judgment of a trial court or intermediate level appellate court. Normally, an appellate court accepts as true all the facts that the trial judge or jury found to be true, and decides only whether the judge made mistakes in understanding and applying the law. If the appellate court decides that a mistake was made that changed the outcome, it will direct the lower court to conduct a new trial, but often the mistakes are deemed harmless and the judgment is left alone. Some mistakes are corrected by the appellate court -- such as a miscalculation of money damages -- without sending the case back to the trial court. An appeal begins when the loser at trial -- or in an intermediate level appellate court -- files a notice of appeal, which must be done within strict time limits (often 30 days from the date of judgment). The loser (called the appellant) and the winner (called the appellee) submit written arguments (called briefs) and often make oral arguments explaining why the lower court's decision should be upheld or overturned. appellant A party to a lawsuit who appeals a losing decision to a higher court in an effort to have it modified or reversed. appellate court A higher court that reviews the decision of a lower court when a losing party files for an appeal. appellee A party to a lawsuit who wins in the trial court -- or sometimes on a first appeal -- only to have the other party (called the appellant) file for an appeal. An appellee files a written brief and often makes an oral argument before the appellate court, asking that the lower court's judgment be upheld. In some courts, an appellee is called a respondent. appraisal A determination of the value of something, such as a house, jewelry or stock. A professional appraiser -- a qualified, disinterested expert -- makes an estimate by examining the property, and looking at the initial purchase price and comparing it with recent sales of similar property. Courts commonly order appraisals in probate, condemnation, bankruptcy or foreclosure proceedings in order to determine the fair market value of property. Banks and real estate companies use appraisals to ascertain the worth of real estate for lending purposes. And insurance companies require appraisals to determine the amount of damage done to covered property before settling insurance claims. appraiser A person who is hired to determine the current value of real estate or other property. appreciation An increase in value. Appreciated property is property that has gone up in value since it was acquired. arbitration A non-court procedure for resolving disputes using one or more neutral third parties -- called the arbitrator or arbitration panel. Arbitration uses rules of evidence and procedure that are less formal than those followed in trial courts, which usually leads to a faster, less-expensive resolution. There are many types of arbitration in common use: Binding arbitration is similar to a court proceeding in that the arbitrator has the power to impose a decision, although this is sometimes limited by agreement -- for example, in hi-lo arbitration the parties may agree in advance to a maximum and minimum award. In non-binding arbitration, the arbitrator can recommend but not impose a decision. Many contracts -- including those imposed on customers by many financial and healthcare organizations -- require mandatory arbitration in the event of a dispute. This may be reasonable when the arbitrator really is neutral, but is justifiably criticized when the large company that writes the contract is able to influence the choice of the arbitrator. arbitrator See arbitration. argument A persuasive presentation of the law and facts of a case or particular issue within a case to the judge or jury. ARM See adjustable rate mortgage.
|