Glossary of Probate Terms
The failure of a specific bequest of property because the property is no longer owned by the testator at the time of his death.
A person (usually a family member) appointed by the court to administer the estate of a person who died without a will (also the Personal Representative).
Administrator With Will Annexed
A person appointed by the court to administer the estate of a person who died with a will, but the will either fails to nominate an executor or the named executor is unable to serve.
A written statement made under oath.
Age of Majority
The age when a person acquires all the rights and responsibilities of being an adult. In California, the age is 18.
Administration in a state other than the decedent’s domicile, when there is also a known administration at the place of domicile.
Beneficiary of annuity.
The formal act of presenting oneself physically to the jurisdiction of a court.
All property other than income that is part of an estate.
The act of witnessing the signing of a document by another, and the signing of the document as a witness. Thus, a will requires both the signature by the person making the will and attestation by at least two witnesses.
The clause generally at the end of an instrument wherein the witnesses certify that the instrument has been executed before them, and the manner of the execution of same. A certificate certifying as to the facts and circumstances attending execution of a will.
The individual who is designated in the power of attorney document to act on behalf of another.
An individual or organization to which a gift of property is made. Person (or organization) receiving benefits under a legal instrument such as a will, trust, or life insurance policy. Except when very small estates are involved, beneficiaries of wills only receive their benefits after the will is examined and approved by the probate court. Beneficiaries of trusts receive their benefits directly as provided in the trust instrument.
The first-person legal term used to leave someone personal property in the will, e.g., “I bequeath my antique car to my brother John.”
The legal term used to describe personal property left in a will.
Cash or securities that are placed in a bank, trust company, insured savings bank or insured brokerage account, subject to withdrawal only upon court order or statute.
A document guaranteeing that a certain amount of money will be paid to the victim if a person occupying a position of trust does not carry out his or her legal and ethical responsibilities. If an executor, trustee or guardian who is bonded wrongfully deprives a beneficiary of his or her property, the bonding company will replace it, up the limits of the bond.
Mental ability to make a rational decision, which includes the ability to perceive and appreciate all relevant facts. Capacity is not necessarily synonymous with sanity. Legal capacity is the attribute of a person who can acquire new rights, or transfer rights, or assume duties according to the mere dictates of his or her own will, as manifested in acts, without any restraint or hindrance arising from his or her status or legal condition.
An official copy of a particular document from a case file that is notated as a true, complete, and authentic representation of the original document.
Any tangible, moveable thing, personal as opposed to real property.
Property acquired by a married couple during their marriage except by gift or inheritance.
Any information introduced into a court proceeding that is not available to the general public.
A person who contests the eligibility of a will to be admitted to probate.
To defend against an adverse claim made in a court by a plaintiff, petitioner or a prosecutor; to challenge a position asserted in a judicial proceeding, as to contest the probate of a will.
Any person entitled to property under a will in the event one or more prior conditions are satisfied.
An award of money for expenses in a civil suit or reimbursement for expenses in a probate matter.
Conducts field investigations and assessments with individuals applying for a guardianship of the estate or conservatorship of the person and/or estate. The investigator interviews involved parties, relatives, attorneys, medical and psychiatric staff, various government agencies, and other concerned parties. The investigator obtains statements, affidavits, and other evidence to prepare detailed reports and make recommendations regarding the suitability of proposed guardian/conservator for judicial review as required under the Probate Code.
A person (or institution) to whom money is owed.
A document wherein a creditor demands payment for debt owed by the decedent.
A person who has died.
The judgment rendered by a court after consideration of the facts and legal issues before it.
A written statement that is unsworn but made under penalty of perjury. All declarations must be dated and signed by the declarant and must show the place of execution and name the state wherein the document was executed or otherwise, that the declaration is made under the laws of the state of California.
A court order.
A written legal document that describes a piece of property and outlines its boundaries. The seller of a property transfers ownership by delivering the deed to the buyer in exchange for an agreed upon sum of money.
In family law, refers to a person who is financially supported by another person, usually the parent. In juvenile law, refers to a minor who is in the custody of the court because he or she has been abused, neglected, or molested.
Developmental disability is a mental disability that begins before an individual attains age 18, that continues indefinitely, and that is substantially handicapping. Developmental disabilities include, but are not limited to, intellectual disability (aka mental retardation), cerebral palsy and autism. Handicapping conditions that are solely physical, however, are not developmental disabilities.
A legal term that now means any real or personal property that is transferred under the terms of a will. Previously, the term only referred to real property.
A person or entity who receives real or personal property under the terms of a will.
Directive to Physician
A document which authorized termination of life support under specified conditions. California's variation of a Living Will.
The act of paying out money, commonly from a fund or in settlement of a debt or account payable.
The term used to describe the court order releasing the administrator or executor from any further duties regarding the estate being subjected to probate proceedings. This typically occurs when the duties have been completed but can also happen in the middle of the probate proceeding when the executor or administrator wishes to withdraw or is removed.
Someone who receives property from an estate.
One who receives a gift. Thus, the beneficiary of a trust is generally referred to as the “donee.”
One who, while alive, gives property to another, in the form of a trust.
Durable Power of Attorney
A written legal document that lets an individual designate another person to act on his or her behalf, even in the event the individual becomes disabled or incapacitated.
Durable Power of Attorney for Healthcare
A written legal document that allows an individual to designate another person to act on his or her behalf with regard to their healthcare decisions.
Refers to probate laws that allow a spouse to take a certain portion of an estate when the other spouse dies, regardless of what was written in the spouse’s will.
When one of the parties is unable or refuses to sign documents necessary to execute a court order, the court may appoint the Clerk of the Superior Court or an authorized representative to act as an elisor to sign the documents.
Any claim or restriction on a property’s title, a debt.
The difference between the fair market value of your real and personal property and the amount you still owe on it, if any.
A legal doctrine under which property belonging to a deceased person with no heirs passes to the state.
Money or documents, such as a deed or title, held by a third party until the conditions of an agreement are met. For instance, pending the completion of a real estate transaction, the deed to the property will be held “in escrow.
A person’s total possessions (assets), including money, jewelry, securities, land, etc. These assets are managed by a fiduciary subject to a court order (e.g., guardianship estate, conservatorship estate, or decedent’s estate).
The person named in a will to carry out the directions as set forth in the will. This person is the personal representative of the decedent’s estate.
A formal type of certification in which the Clerk of the Court signs the certification of the document or record. The Presiding Judge then signs attesting to the fact of the identity of the Clerk of the Court, and that the signature is authentic. Finally, a Clerk of the Court signs again, this time attesting to the fact that the judge is a judge of that county’s superior court, and that his or her signature is authentic.
Any physical object introduced and identified in court and received by the judge as evidence in a case.
Expenses of Administration
The expenses incurred by an executor or administrator in carrying out the terms of a will or in administering an estate. These include probate court fees, fees charged by an executor or administrator, attorney’s fees, accountant fees, and appraiser’s fees.
Fair Market Value
That price for which an item of property would be purchased by a willing buyer, and sold by a willing seller, both knowing all the facts and neither being under any compulsion to buy or sell.
A person or organization that manages property for a person, with a legal responsibility involving a high standard of care (e.g., conservators, guardians, personal representatives, agents, and trustees).
An obligation to act in the best interest of another party. For instance, a corporation’s board member has a fiduciary duty to the shareholders, a trustee has a fiduciary duty to the trust’s beneficiaries, and an attorney has a fiduciary duty to a client.
A determination of fact by a judicial officer or jury.
One who is appointed to generally administer the entire estate.
The person who transfers assets into a trust for the benefit of another. Also known as a trustor.
A person appointed by the court to protect and manage the personal care or financial affairs, or both, of a minor (ward).
Guardian Ad Litem
Latin for “guardian at law.” A person appointed by a court to represent the interests of an incapacitated, mentally handicapped, or minor person in a court case.
The office, duty, or authority of a guardian. Also, the relation subsisting between guardian and ward.
A person who would naturally inherit property through a will, or from another who died without leaving a will.
Generally, a will that is completely handwritten, dated and signed by the person making the will.
The lack of ability to act on one’s own behalf.
California law no longer has a state inheritance tax as such. But if federal estate tax is owed, some of the amount is paid to the state and allowed as a credit on the amount of federal tax owed.
Inter Vivos Trust
A trust set up during the lifetime of a person to distribute money or property to another person or organization (as distinguished from a person who transfers money or property after death).
Without a will. Opposite of testate.
Inventory and Appraisal
A list of all assets in the estate at the beginning of the guardianship, conservatorship, or at the decedent's death. Cash items are valued by the fiduciary; the probate referee values all other items at their fair market value.
A term generally meaning all natural children and their children down through the generations. Adopted children are considered the issue of their adoptive parents and the children of the adopted children (and so on) are also considered issue. A term often used in place of issue is “lineal descendants.
A legal term that refers to the process of joining two or more legal issues together to be heard in one hearing or trial. It is done when the issues or parties involved overlap sufficiently to make the process more efficient or fairer. It helps courts avoid hearing the same facts multiple times or seeing the same parties return to court separately for each of their legal disputes.
An official of the judicial branch of government with authority to decide matters brought before the court. The term "judge" may also refer to all judicial officers, including Supreme Court justices.
A court’s authority to rule on the questions of law at issue in a dispute, typically determined by geographic location and type of case.
All persons described as relatives of the decedent under the California Probate Code.
The failure of a gift of property left in a will because when the testator dies the beneficiary is deceased and no alternate has been named. California has a statute (termed an “anti-lapse” statute), which prevents gifts to relatives from lapsing unless the relative has no heirs of his or her own.
An old legal word meaning a transfer of personal property by will. The more common term for this type of transfer is bequest or devise.
Also known as beneficiary. Person named in a will to receive property.
The court document that establishes the authority to act as a guardian, conservator, or personal representative (executor or administrator). In decedent’s estates, an executor’s letters are designated “letters testamentary,” and an administrator’s letters are “letters of administration.”
The type of ownership a person possesses in real estate when he or she has only the right of possession for his or her life, and the ownership passes to someone else after his or her death.
A type of conservatorship for developmentally-disabled adults.
A trust set up while a person is alive and which remains under the control of that person during the remainder of her life. Also referred to as “inter vivos trusts.”
Also known as a medical directive or advance directive. A written document that states a person’s wishes regarding life-support or other medical treatment in certain circumstances, usually when death is imminent.
A deduction allowing for the unlimited transfer of any or all property from one spouse to the other generally free of estate and gift tax.
A person under the age of 18. A minor is usually defined as someone who has not yet reached the age of majority. The term does not apply to an emancipated youth. As used in the context of a guardianship, a person under the age of 18 years of age who is placed in the care of a court-appointed guardian.
A motion is a formal request made to a judge for an order or judgment. Motions can be filed for many purposes, such as: to continue a trial to a later date, to get modification or clarification of an existing order, for a judgment, for discovery issues, for a rehearing or reconsideration, for sanctions, or for many other purposes.
The value of all property owned at death less liabilities.
Next of kin
The closest living relatives of a decedent, under the California law governing intestate succession.
Information given to a person or entity of some act done, or about to be done.
Monetary; relating to money; financial; consisting of money or that which can be valued as money.
By right of representation; made of distribution in which the issue of a deceased devisee collectively take only the share which their parent would have taken if living.
Belongings of a personal nature, such as clothes and jewelry.
All items, both tangible and intangible, that are not real property. Anything owned by a person that can be moved such as money, securities, jewelry, etc.
The generic title applied to the person who is authorized to act on behalf of the decedent’s estate. Almost always, this person is either an administrator or executor appointed by the court to administer a decedent’s estate.
A written, formal request, properly filed with the court, for a specific action or order. The petition is a pre-printed court form in some cases, or written in proper format on pleading paper in others (e.g., petition for probate, petition for conservatorship, etc).
One who presents a petition to a court. The person who opposes the prayer of the petition is called the “respondent.”
Power of Attorney
A written legal document that gives an individual the authority to act for another.
The term applied to a spouse who has died before the decedent while married to him or her.
A child or spouse who, under certain circumstances, is not mentioned in the will and who the court believes was accidentally overlooked by the testator when making his/her will. If the court determines that an heir was pretermitted, that heir is entitled to receive the same share of the estate as he/she would have had the testator died intestate.
The judicial process in which an instrument purporting to be the will of a deceased person is proven to be genuine or not; lawful distribution of the decedent’s estate. The legal process of administering a will. Also, the judicially supervised process for marshaling a decedent’s assets, paying proper debts, and distributing the remaining assets to the persons or entities entitled to them. An estate may be probated even if there is no will.
All the assets owned at death that require some form of legal proceeding before title may be transferred to the proper heirs. Property that passes automatically at death (property in trust, life insurance proceeds, property in a “pay-on-death” account or property held in joint tenancy) is not in the probate estate.
The Probate Examiner examines files and documents in pending probate matters set for hearing, providing technical, procedural and legal review to ensure that matters before the court have proper notice and complete documents for a court ruling. The Examiner’s work-product is then posted prior to the hearing date for the parties to review and correct deficiencies (or defects) prior to the hearing.
An official appointed by the California State Controller to value all property (except for cash type items) in probate, small estate petitions, conservatorship, and guardianship matters filed with the court. Probate Referees also assist trustees in valuing assets in non-probate matters.
Proof of Service
The form filed with the court that proves the date on which documents were formally served on a party in a court action.
A publicly appointed person who handles the administration of an estate when no other person has been appointed as executor or administrator.
Public Guardian (Public Conservator)
An appointed or elected county officer (and staff) authorized by law to serve as guardian or conservator.
A court record available for inspection by the general public.
Land and all the things that are attached to it. Anything that is not real property is personal property.
All cash or other assets of the estate received by the fiduciary, other than those listed on the inventory and appraisement. Receipts must be reported to the court on a schedule in the periodic accounting.
Private, nonprofit agencies that contract with the state to provide services to persons with developmental disabilities, including assessment, individual program planning, case management, purchase of services, and advocacy. There are 21 regional centers throughout the state.
Also known as residue of the estate. Portion of the estate left after bequests of specific items of property are made. Often the largest portion.
The person or persons named in a will to receive any residue left in an estate after the bequests of specific items are made.
The person against whom an appeal is made; the responding party in a dissolution, nullity, adoption, or probate matter.
Revocable Living Trust
A trust created during the maker’s lifetime that can be changed. Allows the creator to pass assets on to choose beneficiaries without going through probate.
Right of Survivorship
In a “joint-tenancy” or “community property with right of survivorship,” the property automatically goes to the coowner if the other co-owners dies.
A record closed by a court to further inspection by anyone unless further ordered by the court (compare confidential record, public record).
A will accompanied by a sworn statement signed by the witnesses under penalty of perjury. Many states accept such wills in order to avoid the cumbersome process of requiring an executor to track down the witnesses.
A person appointed to be responsible for a deceased person's property for a limited time or during an emergency, such as a challenge to the will or to the qualifications of the named executor. In such cases, the special administrator's duty is to maintain and preserve the estate, not necessarily to take control of the probate process.
Special Needs Trust
A Special Needs Trust enables a person under a physical or mental disability, or an individual with a chronic or acquired illness, to have, held in Trust for his or her benefit, an unlimited amount of assets. In a properly-drafted Special Needs Trust, those assets are not considered for purposes of qualification for certain governmental benefits.
A specific item, distinguished from all others of the same kind belonging to the testator that is designated in the will as going to a specific beneficiary. If the specific item is no longer in the estate when the decedent dies, the bequest fails and resort cannot be made to other property of the decedent.
A trust designed to keep money out of the hands of creditors. Often established to protect someone who is incapable of managing his or her financial affairs.
Any written law passed by a state or federal legislative body.
California form Will.
A money judgment which the court can impose on the fiduciary if the fiduciary's improper acts cause a loss to the estate.
One who undertakes to pay money or do any other act in the event that his principal fails therein. One bound with his or her performance of some duty or promise and who is entitled to be indemnified by someone who ought to have paid or performed if payment or performance be enforced against him or her.
Surety Bond Rider
A surety bond rider, also called a superseded suretyship rider, is an addendum which the surety attaches to a surety bond in order to lengthen the discovery period beyond the span of time originally indicated in the bond's terms.
Tangible Personal Property
Personal property that takes a tangible form, such as automobiles and furniture. Although such items as stock ownership and copyrights may be represented in the form of paper certificates, the actual property is not in physical form and is therefore considered intangible personal property.
The fair market value of all assets owned by a decedent at date of death (gross estate) less certain allowable deductions, such as debts of the decedent, last illness and funeral expenses, and expenses of administering the decedent’s estate (attorney’s fees, court costs and newspaper publication fees).
Tenancy in Common
A type of joint ownership that allows a person to sell his share or leave it in a will without the consent of the other owners. If a person dies without a will, his share goes to his heirs, not to the other owners.
A disposition of property in a will.
A trust created by the provisions in a will. Typically comes into existence after the writer of the will dies.
A person who has made a will or who has died leaving a valid will; opposite of intestate.
The person who makes a will.
Ownership of property.
A bank account in your name for which you name a beneficiary. Upon the death of the named holder of the account, the money transfers automatically to the beneficiary.
A representative of a corporation who is authorized to transfer ownership of a corporation’s stock from one person to another. An executor or administrator must use a transfer agent when passing title to a decedent’s stock to an heir or beneficiary.
A written legal instrument created by a grantor during his or her lifetime or at death for the benefit of another. Property is given to a trustee to manage for the benefit of a third person. Generally the beneficiary gets interest and dividends on the trust assets for a set number of years. A legal arrangement under which one person or institution (called a “trustee”) controls property given by another person (termed a “trustor”, “grantor” or “settler”) for the benefit of a third person (called a “beneficiary”). The property itself is sometimes termed the “corpus” of trust.
The person named in a trust document who will manage the property owned by the trust and distributes any income according to the document. A trustee can be an individual or a corporate fiduciary.
The person who transfers assets into a trust for the benefit of another. (Also known as a “grantor.”)
Uniform Transfers to Minors Act
California law, which provides a way for someone to give or leave property to a minor by appointing a “custodian” to manage the property for the minor.
An oral or written statement that something is true, usually sworn to under oath.
Expression of the form of legal title by which property is held. Fiduciaries generally should vest legal title in themselves expressly in their fiduciary capacity. (E.g., "John Smith, as Conservator of the Estate of Bill Jones.")
A person, especially a child, placed by the court under the care of a guardian.
A legal document directing the disposal of the testator’s property after their death. A will is revocable during the maker’s lifetime.
A proceeding peculiar to probate for the determination of questions of construction of a will or whether there is or is not a will. Any kind of litigated controversy concerning the eligibility of an instrument to probate as distinguished from validity of the contents of the will. (Will contests are in rem proceedings in that the contest is brought against the thing, the will, as opposed to in personam proceedings, which are brought against a person.)