When an individual dies, their property and legal rights would be left blowing in the wind were it not for the process of law which appoints an administrator to collect those assets, pay the debts and distribute what is left to next of kin or, if there is a will, as so provided. The aggregate of assets and liabilities is referred to as an estate.
In Comexter, Justice Catliff adopted these words:
"The collective assets and liabilities of a person."
In McPherson, Justice Green wrote that the use of the word estate includes:
"... the whole real and personal estate of a testator."
The 2009 version of the Dependants' Relief Act of the Canadian province of Saskatchewan captures the definition of estate:
"Estate means all the property of which a deceased had power to dispose by will, otherwise than by virtue of a special power of appointment, less the amount of the deceased's funeral, testamentary and administration expenses and debts and liabilities that are payable out of the deceased's estate on his or her death."
Some assets, such as property held with another in joint tenancy, vest in the survivor automatically upon the death of the joint tenant. In that sense, lawyers will say that the property so held does not enter the estate of the deceased.
Gifts made during the deceased's lifetime do not form part of the estate since the property right in the gift traveled to the recipient of the gift.
The public authorities are always anxious to tax and the event of death is as good as any opportunity to collect tax. They do so by taxing the estate.
The property held by living persons but otherwise unable to manage their own affairs, such as a person without the requisite mental capacity, or a minor, is also referred to as an estate. For example, when a person is declared mentally incapable of managing their affairs, a court has to decide on the one hand, who manages the person, and on the other, who manages the estate of the person although the two responsibilities are often given to the same person. Similarly, when a person goes bankrupt, the estate is wrested from their control and, temporarily, given to a third party, a bankruptcy trustee.
Real estate means the real property component of a person's estate, dead or alive.
Historically, land was, and still is, the most significant asset of a deceased and so the term estate was limited to land or land-based rights such as a lease. Today, though, no such limitation persists in the common law. If a will says "I give my estate to my wife", the wife inherits all of the property held by the deceased, including incorporeal assets such as intellectual property, shares in a corporation, or an income stream.
For a while, that usage has caused problems as the courts struggled with the question: does estate, and nothing more, include real estate? The answer (eventually): yes.
In Coard, the testator willed all his "estate, effects and property" to his son. Although the word estate did not specify real estate, Justice Romilly found that the "words ... are sufficient to include real estate."
In Australia, Justice Douglas wrote, in Re Seccombe:
"The word estate is of general import and prima facie covers all the disposable property of the testatrix."
French: patrimoine.
REFERENCES:
- Coard v Holderness 20 Beav 147 (52 ER 559) (1855)
- Comexter Inc v Cassady 35 DLR 4th 110 (1987, BCSC)
- Dependents' Relief Act, Statutes of Saskatchewan 1996, Chapter D-25.01, §2(1)
- McPherson v Canada Trust 1941 OWN 65; also at 1941 CarswellOnt 99 and (1941) 2 DLR 788
- Re Seccombe 1948 St. R. Qd. 11