Glossary of Probate Terms
Below is a list of standard probate terms that you may need to become familiar with:
Abatement: Cutting back certain gifts under a will when necessary to create a fund to meet expenses, pay taxes, satisfy debts or to have enough to take care of other bequest that are given priority under the law or under the will.
Ademption: When property mentioned in a will cannot begiven to a beneficiary because it no longer belonged to the deceased at the time of death. For example, the particular gift may have been destroyed, sold, or given away between the time of the will and the time of death.
Administrator: A person or institution appointed by a court to act on behalf of the deceased person in connection with the administration of a decedent’s estate.
Administrator with Will Annexed Sometimes called "Administrator CTA" An administrator appointed by a court to act on behalf of the deceased person who left a will, but where no nominated executor is willing and able to act.
Affidavit: A written statement or affirmation made under penalty of perjury that requires notarization or can be authorized by an officer having authority to administer oaths. Affidavits are used in lieu of live testimony to support the facts contained in a petition or other document submitted in the course of the probate process.
Ancillary Administration: An administration of a decedent’s property located in a state other that the state of the decedent’s domicile.
Appraiser: a person possessing expertise in determining the market or fair value of a real or personal property. The probate court appoints an appraiser to place a value on the estate for tax purposes.
Attestation: 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.
Beneficiary: The individual or corporation who receives the benefit of a transaction (e.g., beneficiary of a life insurance policy, beneficiary of a trust, or beneficiary under a will.) Except in very small estates, beneficiary of wills only receives their benefits directly as provided in the trust instrument.
Bequeath: The first person legal term used to leave someone personal property in the will, for example, " I bequeath my grandfather clock to my brother Brian".
Bequest: To give or leave personal property or assets by Will to an individual or charity. A bequest may be for a specific amount or percentage of the Estate.
Bond: 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.
Codicil: An addition to a will, the codicil may modify, add to, subtract from, qualify, alter, or revoke provisions in the will. The codicil is a separate document. It is signed with the same formalities as a will. The codicil can be changed, revoked, cancelled, or destroyed at any time. When admitted to probate, it forms a part of the will.
Community Property: Real or personal property that is owned in common by husband and wife as a kind of marital partnership. Either spouse has management and control of the community real and personal property; however, both spouses must join in a transfer of ownership or lease for more than one year of community real property or a gift of community personal property. All property acquired during marriage from earnings, and the earnings themselves, are community property. Property acquired by gift or inheritance is separate property, not community property.
Conservator: The individual or corporation who legally has charge of the care and management of the person, property, or both of an adult who is unable to provide for his own personal needs or who is substantially unable to manage his financial affairs.
Limited conservatorships may be established for developmentally disabled adults.
Contract: An agreement between two or more parties in which an offer is made and accepted, and each party benefits. The agreement can be formal, written, oral or just plain understood. Some contracts are required to be in writing in order to be enforced.
Contingent Beneficiary: One to whom distribution is dependent upon the occurrence of an event.
Custodian of the Will: The person holding the Will at the time the person who wrote the Will dies.
Debtor: Person who owes money.
Decedent: The person who has died.
Declaration: A written statement made under penalty of perjury.
Deed: A written legal document that describes a piece of property and outlines its boundaries. The seller of a property transfers ownership delivering the Deed to the buyer in exchange for an agreed upon sum of money.
Devise: A legal term that now means any real or personal property that is transferred under the terms of a will.
Discharge: The term used to describe the court order releasing the administrator or executor from releasing from further duties regarding the estate being subject to probate proceedings.
Durable Power of Attorney: A written legal document that allows an individual to designate another person to act on his or her behalf, even in the event that the individual becomes disabled or incompetent.
Devisees and Legatees: Persons named by a decedent in his will. A bequest or devise generally refers to real property and a legacy of money or personal property.
Disclaimer: A refusal to accept, for example, a testamentary gift that is made in a prescribed manner and time.
Domicile: The specific location of a person’s permanent residence that determines, for many purposes, the laws that will govern his affairs. A person may have many residences, but he can have only one domicile. The domiciliary proceeding is that created in the jurisdiction of the decedent’s domicile.
Donee: A person who receives a gift from another.
Donor: A person who makes a gift to another.
Escheat: The term which describes the reversion of property to the state in the event a person dies leaving no valid will and no heirs at law surviving him.
Escrow: Money or documents, such as a deed or title, held by a third party until the conditions of an agreement are met.
Estate: All the property person owns.
Estate Taxes: Federal-The death taxes imposed the federal government on the transfer of assets upon death.
Executor: The individual or corporation appointed in a will by a testator to take care of the testator’s property after his death. Also called a personal representative.
Ex Partee: A judicial proceeding granted without notice.
Expenses of Administrator: The expenses incurred by an executor or administrator in carrying out the terms of the will or in administrating an estate. (Intestate) e.g. probate court fees, fees charged by executor or administrator, attorney, accountant, and appraiser.
Fiduciary: A person charged with a high degree of care who acts on behalf of another. Executors and trustees are fiduciaries.
Gift Tax Annual Exclusion: Both California and federal law allow a donor to exclude a number of gifts from taxation each year, if the gifts are of a present interest and to a specific individual. A present interest gift is one in which the donor has an immediate unrestricted right of use, benefit, and enjoyment.
Grantor: The individual or corporation who makes a grant (transfer) of property to another person (e.g., grantor of a trust, grantor of a deed of property).
Guardian: The individual or corporation who legally has charge of the care and management of the person, property, or both, of a child during his minority.
Heir: The person who inherits property under state law.
Inheritance Taxes: The taxes imposed, according to the relationship to the decedent, on the person who receives the property.
Intestate: Refers to someone who dies leaving no will.
Intestate Succession: The order of who inherits the property when someone dies without a Will.
Inter Vivo Trust: A trust created “between the living.” The grantor (trustor) is a living person. An inter vivos trust can be either revocable or irrevocable.
Inventory: A complete listing of all property owned by the decedent at death that is filed with the probate court in the event a probate is filed.
Irrevocable Living Trust: A Trust created during the makers lifetime that does not allow the maker to change it.
Irrevocable Trust: A trust whose terms and provisions cannot be changed, modified, altered, amended, or revoked.
Legatees, or Devisees: Also known as a beneficiary. Person named in a Will to receive property.
Letters of Administration: A document issued by the court that designates an administrator of an estate and authorizes him to carry out his proper duties.
Letter Testamentary: The formal instrument of authority given to an executor by the probate court, empowering him to carry out his duties as executor.
Lien: A claim against someone's property. A lien is instituted in order to secure payment from the property owner in the event that the property is sold. A mortgage and deed of trust are common liens.
Joint Tenancy: A form of property ownership by two or more persons, often designated as “joint tenants with right of survivorship.” Joint tenants always own equal parts of joint tenancy property. When a joint tenant dies, his or her interest in the property automatically goes to the surviving joint tenant.
Life Estate: An interest in property, the term of which is measured by the life of its owner.
Life Tenant: The person who receives the benefits from the real or personal property during his lifetime only. The benefits stop when he dies.
Minor: A person who is und3er the age of legal competence.
Personal Representative: This term describes an executor or administrator.
Power of Appointment: The actual power of legal authority given by the trust or will of one person, the “donor” of the power, to a second person, the “done” of the power, which enables the second person to designate the manner of disposing of the property. A power of appointment may be general or special, as defined below:
General Power: Enables the donee to designate himself, his creditors, his estate, the creditors of his estate, or any other person, as owner of the subject property.
Power of Attorney: The authority to act legally for another person.
Probate: The legal process which decides how, where and to whom the decedent's property is distributed.
Probate Estate: The term 'Estate' refers to a person's property or assets. After a person has died, their Estate will be categorized as either probate or non-probate. Non-probate property passed directly to the beneficiaries. Assets which are subject to the probate process are called the “Probate Estate.”
Revocable Living Trust: A Trust created during the maker's lifetime that can be changed. Allows the creator to pass assets on to chosen beneficiaries without going through Probate. The maker (grantor) reserves the right in the Trust document to amend or revoke the Trust at any time during his or the lifetime. This enables the grantor to revise the Trust (or even terminate the Trust) to take into account any change of circumstances such as marriage, divorce, death, disability or change of mind.
Surety Bond: is defined as a contract among at least three parties: the oblige: the party who is the recipient of an obligation. the principal: the primary party who will perform the contractual obligation. the surety: who assures the oblige that the principal can perform the task.
Special Power: Limits the done as to the persons to whom he can designate as owners of the property over which he has a power of appointment. The limitation of appointment can be very specific (e.g., to a group consisting only of A’s children) but can never be the done, his estate his creditors, or the creditors of his estate because this would defeat the purpose of the special power, namely, to keep the appointive property from being taxed in the estate of the done on his death.
Power over will: A will that provides for the transfer, after or during the probate court proceedings, of all or part of the net assets of a decedent’s probate estate from the executor’s control to the control of a trustee who is in charge of a trust that was in existence immediately before the death of the deceased person (inter vivo trust).
Pretermitted Heir: One who would normally be beneficiary of the decedent but who is not mentioned in the will.
Probate Administration: The legal process whereby a probate court supervises the marshalling of a deceased person’s debts and taxes and orders the property distributed according to decedent’s will, or in its absence, to the deceased person’s heirs. The probate court has jurisdiction over the personal representative and the decedent’s assets.
Quasi-community Property: In California only, that property acquired by a decedent while living outside
California, which, if acquired in California, would have been community property. For federal estate tax purposes, quasi-community property is treated like separate property.
Real Property: An interest in land or property permanently affixed to land.
Remainder Interest: An ownership interest in property that will become a present interest after the present owner or life tenant has received all the property benefits to which he is entitled.
Residue: The remaining part of a decedent’s estate after the payments of debts and legacies. Also called “residuary estate.”
Residuary Beneficiary: One to whom all or part of the residue is distributed.
Reversionary Interest: An ownership interest in property that returns to the original owner when the intervening interest expires.
Revocable Trust: A trust whose terms and provisions can be changed, modified, altered, amended, or revoked.
Right of Representation: A method of distribution, sometimes referred to as “per stirpes,” whereby the share of distribution of a deceased beneficiary is divided equally among his children.
Separate Property: In California, a category of property between husband and wife that is not community property or quasi-community property, but that is owned separately by the husband or wife.
Settlor: Another word for grantor or trustor of a trust. The person who “settles” the assets into the trust.
Tenancy in Common: A form of holding title to real or personal property by two or more persons. Because there is no right of survivorship, the legal relationships and results are very different from joint tenancy. Tenants in commo need not hold equal interest, and on the death of a tenant in common, his interest will pass by his will or according to the laws of intestate succession.
Testamentary Trust: The trust that comes into being only as a result of the death of a person whose will provides for the creation of the trust after his death, hence, the term “testamentary.” Once in existence, this trust is irrevocable.
Testate: Refers to someone who dies leaving a will.
Testator: The person who signs the will that disposes of his property; testatrix is the female term. It is common as a convenience to use the term testator for either a man or a woman.
Totten Trust: A form of revocable trust, usually a bank account, that allows distribution to the beneficiary upon the death of the trustee, without the need for probate of the asset. Example, John Jones as Trustee for Mary Jones.
Trust: A legal entity established either during a trustor’s lifetime (inter vivo) or at his death (testamentary). The trust is governed by the terms set forth in the trust documents. A trust must have a trustee, a beneficiary, and a “corpus” or property subjected to the trust.
Trustee: The individual or corporation who in a trust has bare legal title to the assets and has the power given in the trust to carry out the wishes of the person or persons (trustor or trustors) who created the trust. The trustee has a fiduciary obligation to the trust’s beneficiaries enforceable in court if not carried out. The trustee is subject to strict regulation. Although he has legal title for convenience, the beneficial or equitable title is in fact owned by the beneficiaries. When there is more than one trustee, the trustees are called co-trustees.
Trustor: The person or persons who establish a trust. There can be more than one trustor.
Uniform Gifts to Minors Act: A law that permits a person (“donor”) to register stock, bank accounts, or insurance in the name of another (“custodian”) for the benefit of one who is at the time a minor (“beneficiary”) without preparing a formal trust document. In effect, the trust document has been written into the law. In so doing, the donor makes an irrevocable gift of the property to the minor, but the custodian holds, invests, reinvests, and applies the property for the benefit of the minor until his majority, at which time the property is turned over to the beneficiary. This is a simple, inexpensive way to make small gifts to a minor.
Will: A document, prepared and executed by a person with the formality required by the laws of the state of his domicile at the time, which is intended to govern and direct the disposition of his estate and settlement of his legal affairs at the time of his death and which has no legal effect until his death. If the document is entirely in the person’s own handwriting, it is called a “holographic will.” If a will is typed, it is called a “witnessed will” because the signing of it generally requires two or more witnesses to testify later, if necessary, that the execution was not procured by fraud, duress, or misrepresentation.