Tomayto / Tomahto

A “tomayto” is the American pronunciation for our favorite beefy red vegetable, while the British call this vegetable a “tomahto.” The expression “tomayto / tomahto” describes two terms that are essentially the same.

In the world of estate planning and probate, lawyers use a lot of terminology that non-lawyers may not be familiar with. Some of these terms fall into the tomayto / tomahto category, while others offer more substantive differences. Such as:

• Personal Representative / Executor: These are two terms that fall into the tomayto / tomahto category. These terms are often used interchangeably. RCW 11.02.005(7) defines an executor as “a personal representative of the estate of a decedent appointed by will and the term may be used in lieu of “personal representative” wherever required by context.” A personal representative is a broader term than executor, and also encompasses situations in which there may not be a will.
• Executor / Executrix: An “executrix” is a female executor. This tends to be an old usage. The more modern approach is to use the term executor regardless of gender. How old is this usage? Washington law has required that all statutes be written in gender-neutral terms since 1983.
• Executor / Administrator. These terms are similar but not interchangeable. RCW 11.02.005(1) defines an administrator as “a personal representative of the estate of a decedent and the term may be used in lieu of ‘personal representative’ wherever required by context.” However, a key difference is that the executor is appointed by a will, while an administrator is not. Generally, the term “administrator” means the person appointed by the court to manage an estate in the absence of a will.
• Heir / Beneficiary. These terms are similar, but not quite in the tomayto / tomahto category. RCW 11.09.005(9) defines an heir as “those persons, including the surviving spouse or surviving domestic partner, who are entitled under the statutes of intestate succession to real and personal property of a decedent upon the decedent’s death intestate.“ To the contrary, an estate beneficiary is a person or charity specifically named in a will to receive an estate distribution. An estate beneficiary may also be an heir, but doesn’t have to be. If there is a will, the heirs may not be beneficiaries under the will, and the beneficiaries may not be heirs.
• Domestic Partner / Live-In Romantic Partner. In the real world, these terms are treated interchangeably and fall within the tomayto / tomahto category. But not in the world of estate planning and probate. In that context, a domestic partner means one of the persons in a state registered domestic partnership which is defined by RCW 26.60.020(1) as “two adults who meet the requirements for a valid state registered domestic partnership as established by RCW 26.60.030 and who have been issued a certificate of state registered domestic partnership by the [Washington Secretary of State’s office].” A state registered domestic partner has rights in the estate planning and probate context that a live-in romantic partner does not have.

Do you need assistance working through the terminology unique to estate planning and probate? Please let us know!