Disclaimer: This glossary provides general information about terms used in California probate for informational purposes only. It is not legal advice and should not substitute consultation with a qualified California probate attorney regarding your specific situation. Laws and procedures can change.
Current as of April 27, 2025.
The schedule of cases to be heard by the court on a particular day. Probate matters often have their own calendar call.
The main body of California state statutes governing wills, trusts, estate administration, conservatorships, guardianships, powers of attorney, health care decisions, and related matters.
State law allowing adults to transfer property to a custodian to hold for the benefit of a minor until the minor reaches a certain age (usually 18 or 21), avoiding the need for a formal guardianship of the estate for those assets.
A court action to declare a written document (like a deed or contract) void.
The mental ability required by law to perform a valid legal act, such as making a will (Testamentary Capacity), entering a contract (Contractual Capacity), or making decisions about personal care or finances (Capacity to make decisions, relevant for conservatorship). Standards vary depending on the act.
An evaluation, often by medical or mental health professionals, of a person’s ability to make decisions, typically conducted in conservatorship proceedings.
The difference between an asset’s tax basis and its selling price. Realization triggers potential capital gains tax.
An expenditure that adds to the value or prolongs the life of a fixed asset (like real property). Can adjust the asset’s tax basis.
Law established by decisions in prior court cases (precedent).
A court hearing where the judge and parties discuss the status of a case, scheduling, discovery, and potential settlement.
The amount of cash payable by an insurance company if a life insurance policy owner cancels the policy before it matures or the insured dies.
The legal grounds or basis for filing a lawsuit.
Latin for “let him beware.” A warning. May refer to a notice filed to challenge a will.
Wills or other documents may specify wishes regarding burial location and arrangements. Cemetery plots are considered real property interests.
An official document certifying a fact or qualification.
A court document certifying that a specific person has been appointed and qualified as executor, administrator, conservator, or guardian.
See Death Certificate.
A specific legal certificate signed by an independent attorney verifying that a gift made in a will or trust to certain disqualified persons (like the drafter or a fiduciary) was not the product of fraud or undue influence. Required under Probate Code §21384 to validate such gifts.
A condensed version of a trust document providing key information (trustee identity, powers) without disclosing beneficiaries or dispositive provisions. Used under Probate Code §18100.5 to prove the trust’s existence and the trustee’s authority to third parties like banks, avoiding the need to provide the full trust instrument.
A copy of a document marked by the court clerk or other official (like the County Recorder) as a true and correct copy of the original filed document. Often required for transferring assets or recording orders.
The historical sequence of recorded transfers and encumbrances affecting title to a specific parcel of real property.
To dispute or contest the validity of something (e.g., challenge a will, challenge an accounting).
Moving a lawsuit from one county or district to another, usually for convenience or fairness.
A legal doctrine under California Probate Code § 15409 allowing the Probate Court to modify or even terminate a trust if events occur after the trust’s creation that were neither known nor anticipated by the settlor (creator).
A qualified non-profit organization named to receive assets from an estate or trust.
Tax deduction allowed for donations made to qualified charitable organizations, relevant for estate income tax or potentially estate tax.
A trust that makes payments to a charity for a specified term, after which the remaining assets pass to non-charitable beneficiaries (often family members).
A trust that makes payments to non-charitable beneficiaries for a specified term (or life), after which the remaining assets pass to a designated charity. Types include CRAT (Annuity Trust) and CRUT (Unitrust). Provides income and potential tax benefits.
A trust created for the benefit of a charitable organization or a purpose considered charitable under law (e.g., relief of poverty, advancement of education/religion/health). Subject to oversight by the Attorney General.
An old legal term for an item of tangible personal property.
An old term for a security interest in personal property. Now governed by the Uniform Commercial Code (UCC).
A written order directing a bank to pay money. Checks written by the decedent but not cleared before death may represent debts; checks payable to the decedent are estate assets.
Determining which jurisdiction’s laws should apply to resolve a legal issue, often relevant when parties or property span multiple states. Wills and trusts may contain choice-of-law clauses.
A legal right to sue or recover a debt or damages. An estate asset.
Euphemism for elderly.
Evidence that indirectly proves a fact by inference. Often used in will contests regarding capacity or undue influence.
A legal notice issued by the court commanding a person to appear in court at a specific time and place, or to respond to a petition. Often used in conservatorship proceedings or to compel production of a will or attendance at a hearing. (Probate Code §1240 et seq.).
A non-criminal lawsuit between private parties seeking to enforce rights or recover damages. Probate proceedings are generally civil actions.
A demand for payment made by a creditor against the decedent’s estate, or a legal assertion of a right.
A legal action to recover possession of specific personal property.
The specific time frame during which creditors must file their formal claims against a probate estate after notice is given. In California, typically four months after Letters are issued or 60 days after specific notice is mailed or personally delivered to a known creditor, whichever is later. (Probate Code §9100). Failure to file within the period generally bars the claim.
A gift in a will or trust to a group of beneficiaries identified by a general description rather than by individual names (e.g., “to my children,” “to my nieces and nephews”). Membership in the class is determined at a specific time (often the date of death or distribution).
A standard of proof higher than “preponderance of the evidence” but lower than “beyond a reasonable doubt.” Required for certain findings in probate, such as proving a lost will or overcoming presumptions like undue influence in specific circumstances.
A mistake in a document (like a court order or will) that does not reflect the true intent, usually due to inadvertence or typo. May be corrected by the court (Nunc Pro Tunc or Reformation).
A person who hires an attorney for legal advice and representation.
The final statement made by each attorney to the judge or jury summarizing the evidence and arguing their case.
The final phase of probate administration, involving filing a final accounting and petition for final distribution, paying final costs, distributing remaining assets to beneficiaries/heirs, and obtaining a court order discharging the personal representative.
Any claim, encumbrance, or irregularity that may impair the owner’s title to real property or make it difficult to sell. Probate often clears title issues.
A person who signs a loan agreement along with the primary borrower, sharing responsibility for repayment.
Two or more individuals or entities appointed to jointly manage an estate. Must act together unless the will or court order provides otherwise.
A person who owns property concurrently with one or more other persons (e.g., joint tenant, tenant in common).
A legal document that amends, modifies, adds to, or partially revokes an existing will. It must be executed with the same formalities as a will (signed and witnessed in California, unless holographic).
Compelling someone to act against their will through force or threats. Grounds for challenging a will or trust. See Duress, Undue Influence.
Property pledged as security for a debt. Also refers to relatives descended from a common ancestor but not in a direct line (e.g., siblings, cousins). See Collateral Heir.
An attempt to challenge the validity of a prior court judgment or order in a separate, subsequent lawsuit, rather than through a direct appeal. Generally disallowed if the prior court had jurisdiction.
An heir who is not a direct descendant but related through a common ancestor, such as a sibling, aunt, uncle, nephew, niece, or cousin. Inherits under intestate succession only if closer relatives do not exist.
A business that pursues payment of overdue debts. May file creditor claims in probate.
Courtesy or recognition that one jurisdiction gives to the laws and judicial decisions of another jurisdiction. Relevant in ancillary probate or cases involving multiple states.
Mixing estate, trust, or conservatorship funds or assets with the fiduciary’s own personal funds or assets. A serious breach of fiduciary duty, prohibited by law.
Fee paid to a fiduciary or agent for services. See Probate Fees.
Legal process for confining a person to a mental health facility, usually under LPS Act procedures in California, separate from probate conservatorship but sometimes related.
See Simultaneous Death.
An equitable exception to the standard American rule (where each party typically pays their own attorney’s fees). The Common Fund Doctrine allows a litigant whose legal efforts successfully create, preserve, increase, or protect a specific fund of money or assets, from which other non-litigating parties also benefit, to recover their reasonable attorney’s fees and litigation costs directly from that common fund before it is distributed. In California probate or trust litigation, this doctrine frequently applies when a beneficiary takes legal action (e.g., suing a third party or a fiduciary for breach of duty) that successfully recovers assets for the benefit of the entire estate or trust, thereby benefiting all beneficiaries. In such cases, the court may authorize payment of the litigating beneficiary’s attorney’s fees and costs from the recovered fund itself before the net proceeds are distributed among all the beneficiaries.
Law derived from judicial decisions and custom, rather than from statutes. California law is a mix of statutory and common law principles.
A marriage created by agreement and public representation without a formal license or ceremony. Not valid if created in California, but California generally recognizes valid common law marriages formed in states that allow them.
Debt incurred by either spouse during marriage that is not separate debt. Both spouses and the community property are generally liable. Must be addressed in probate.
Assets acquired by spouses or registered domestic partners during marriage while domiciled in California (except by gift, inheritance, or bequest). Each partner owns an undivided one-half interest. California is a community property state. Has significant implications for inheritance, management, and taxation (step-up in basis). (Probate Code §28, §100).
A form of holding title available to married couples/registered domestic partners in California that combines community property characteristics (including double step-up in basis) with automatic transfer to the surviving partner upon death, avoiding probate for that specific asset. Requires specific language in the deed. (Civil Code §682.1).
A request asking the court to order another party to take a specific action, such as responding to discovery requests.
Money awarded in a lawsuit to compensate the plaintiff for actual losses or injuries suffered due to the defendant’s wrongful act.
See Capacity.
The initial pleading filed by a plaintiff to begin a civil lawsuit, stating the claims against the defendant.
Acting in accordance with laws, regulations, court orders, or terms of an instrument.
An agreement resolving a dispute, often involving mutual concessions. See Settlement Agreement. Probate Code provides procedures for court approval of compromises involving estates (§9830 et seq.).
Hiding assets or information that should be disclosed. Can be grounds for fiduciary removal or liability.
The judge’s rulings on legal issues in a case, based on the findings of fact.
A legal presumption that cannot be rebutted by evidence; it must be accepted as true if the underlying facts are established. Rare.
A condition that must occur or be performed at the same time as another condition for a contract or obligation to be enforceable.
Ownership of property by two or more persons at the same time (e.g., Joint Tenancy, Tenancy in Common, Community Property).
See Eminent Domain.
A provision in a document stating that a right or obligation depends on the occurrence or non-occurrence of a specific event.
A condition that must occur before a right or obligation becomes effective (e.g., beneficiary must survive the testator to inherit).
A condition that, if it occurs after a right has vested, will terminate that right (e.g., beneficiary receives income until they marry).
A gift in a will or trust that only takes effect or remains effective if a specific stated condition is met. Enforceability may depend on public policy.
A will intended to be effective only if a specific event occurs.
A relationship where one party places special trust and confidence in another, who is then obligated to act with utmost good faith (e.g., fiduciary relationships, attorney-client). The existence of a confidential relationship can be a factor in finding undue influence.
Court approval required for sales of estate property in dependent administration or sometimes under IAEA. See Order Confirming Sale of Real Property.
A situation where a fiduciary’s personal interests conflict, or appear to conflict, with their duty to the beneficiaries or estate. Fiduciaries have a duty to avoid conflicts of interest.
Inconsistencies between the laws of different states or jurisdictions that may apply to a legal issue. Rules exist to determine which law governs.
A copy of a document filed with the court that has been stamped by the clerk with the filing date and case information, indicating it is part of the court record.
Relationship by blood (e.g., parents, children, siblings). (Contrast with Affinity).
Voluntary agreement or permission. May be required from beneficiaries for certain fiduciary actions unless authority exists otherwise.
An adult person determined by the court to be unable to manage their own personal care (Conservator of the Person) and/or financial affairs (Conservator of the Estate) due to mental or physical limitations, for whom a conservator is appointed. (Probate Code §1801).
A person or entity (including private professional fiduciaries or the Public Guardian) appointed by the court to manage the personal care (Conservator of the Person) and/or financial affairs (Conservator of the Estate) of a conservatee. Acts under court supervision.
Manages the conservatee’s finances, assets, and business affairs.
Manages the conservatee’s personal needs, including health care, food, clothing, and shelter.
A court proceeding under the Probate Code to appoint a conservator for an adult who is found by the court to be unable to manage their personal or financial affairs. Requires formal petition, investigation, hearing, and ongoing court supervision.
The income and assets belonging to the conservatee, managed by the Conservator of the Estate under court supervision.
Something of value (an act, forbearance, or return promise) exchanged between parties to form a valid contract. Gifts lack consideration.
Entrusting goods to another (consignee) to sell, where the consignee pays the owner (consignor) only if the goods are sold. Consigned goods may be part of an estate.
Combining two or more separate lawsuits or legal matters involving common issues or parties into a single proceeding for efficiency.
Deprivation of the benefits of a family relationship (companionship, assistance, affection) due to wrongful injury. Relevant in tort claims that may involve an estate.
An agreement between two or more persons to commit an unlawful act.
A right guaranteed by the state or federal constitution.
The process by which courts interpret the meaning of ambiguous language in statutes, wills, trusts, or other legal documents according to established rules and principles. (Probate Code Division 11).
Legally inferred or implied, rather than direct or express (e.g., constructive notice, constructive trust, constructive fraud).
An act legally considered equivalent to actual physical delivery when physical delivery is impractical (e.g., handing over keys to a car).
Breach of a legal or equitable duty that the law declares fraudulent because it tends to deceive others, even without actual dishonest intent (e.g., breach of fiduciary duty).
Knowledge that the law presumes a person has because it is available through public records (like recorded deeds) or circumstances, even if they don’t have actual knowledge.
An equitable remedy imposed by a court compelling a person who holds legal title to property, which they obtained or hold wrongfully, to convey it to the person rightfully entitled to it. Not a true trust but a remedy against unjust enrichment.
Debt incurred primarily for personal, family, or household purposes.
An old concept relevant to gift tax, referring to gifts made with the expectation of imminent death. Now largely superseded by rules including certain gifts made within 3 years of death in the taxable estate.
Willful disobedience or disrespect towards a court order or process. Punishable by fines or imprisonment.
To challenge or dispute the validity of a will, trust, accounting, or other petition filed in court. See Will Contest.
A person who initiates a contest (e.g., will contest).
A legal proceeding where parties disagree on the issues or outcome and present opposing arguments or evidence to the court.
An event that may or may not occur. Rights or obligations may depend on contingencies.
An attorney fee arrangement (common in personal injury, rare in standard probate) where the fee is a percentage of the amount recovered for the client. Must be in writing.
A beneficiary whose right to receive property depends on the occurrence or non-occurrence of a future uncertain event (e.g., surviving another person, reaching a certain age).
A potential claim against an estate that depends on a future uncertain event (e.g., a pending lawsuit against the decedent). Specific procedures exist for handling contingent claims in probate (Probate Code §9100, §11460 et seq.).
A future interest in property that is dependent upon the happening of an uncertain event or condition.
Adjournment or postponement of a court hearing or trial to a later date. Requires court approval.
A legally enforceable agreement between two or more parties involving mutual promises and consideration. Estates may be party to contracts entered into by the decedent or the personal representative.
A will executed pursuant to a contract, often a contract not to revoke the will (e.g., mutual wills). California law requires high proof for such contracts (Probate Code §21700).
The right of one person who has paid more than their share of a joint obligation to recover the excess from the other obligated parties.
An old doctrine (largely replaced by comparative negligence in CA) barring recovery if the plaintiff’s own negligence contributed to their injury.
Wrongfully exercising control or dominion over another’s personal property, interfering with their ownership rights. A fiduciary who misappropriates assets commits conversion.
The transfer of title to real property from one person to another, usually by deed.
State law requiring a portion of a minor entertainer’s earnings to be set aside in a blocked trust account (Coogan Account) until they reach adulthood. Relevant if a minor beneficiary inherits royalties.
The exclusive legal right granted to creators of original works (literary, musical, artistic) to control their reproduction, distribution, and adaptation. Can be a valuable estate asset.
A public official who investigates deaths occurring under unusual or suspicious circumstances to determine the cause of death. Their report may be relevant in probate.
An institution (like a bank trust department or trust company) authorized by law to act as a fiduciary (executor, trustee, conservator). Often used for large or complex estates/trusts.
A legal entity separate from its owners (shareholders), created under state law. Shares of stock are common estate assets. A corporation can also act as a fiduciary or beneficiary.
Latin for “body.” The principal assets held in a trust that generate income. (Contrast with Income).
Expenses incurred during a legal proceeding or estate/trust administration, such as court filing fees, publication costs, service fees, appraisal fees, bond premiums, etc. Allowable costs may be paid from the estate or trust, or sometimes awarded to the prevailing party in litigation.
Legal advisor; lawyer.
A separate cause of action or claim stated in a legal pleading (complaint or petition).
A claim filed by a defendant against the plaintiff in the same lawsuit.
The branch of government responsible for interpreting laws and resolving legal disputes. In probate, usually the Superior Court of California in the county where the decedent resided or property is located.
An administrative official of the court responsible for maintaining records, receiving filings, issuing process, etc.
Fees and charges required to be paid to the court during litigation (e.g., filing fees). See Costs.
An individual employed by or contracted with the Superior Court (often in the probate department) to conduct impartial investigations, typically in conservatorship and guardianship cases, interviewing relevant parties and reporting findings and recommendations back to the judge. (Probate Code §1454).
See Order.
A person who transcribes spoken testimony during court hearings or depositions into a written record.
Oversight by the probate court over the actions of fiduciaries in dependent administration, conservatorships, and guardianships. Many actions require prior court approval.
A formal promise contained in a contract or deed.
Believability or trustworthiness. The court assesses the credibility of witnesses and evidence.
A bid made by a secured creditor at a foreclosure or probate sale, using the amount of the debt owed as part or all of the bid amount, rather than cash. Rules apply in probate sales (Probate Code §10361).
See Bypass Trust.
A person or entity to whom a debt is owed. In probate, someone to whom the decedent owed money or who has a monetary claim against the estate.
A formal written demand filed with the court or presented to the personal representative by a creditor seeking payment of a debt owed by the decedent or the estate. Must be filed within the Claim Period. (Probate Code §9000 et seq.).
Questioning of a witness by the opposing party after the witness has testified on direct examination.
A provision often included in irrevocable life insurance trusts (ILITs) or other trusts receiving gifts. It gives beneficiaries a limited, temporary right (e.g., 30 days) to withdraw contributions made to the trust. This power makes the contribution a “present interest,” qualifying it for the annual federal gift tax exclusion. Named after the Crummey v. Commissioner case. Proper notices must be sent to beneficiaries.
Latin for “with the will annexed.” See Administrator with Will Annexed.
A legal doctrine stating that if a person has knowledge of facts that would lead a reasonably prudent person to inquire further, they are presumed to have notice of the facts that such inquiry would have revealed.
Doctrine allowing otherwise inadmissible evidence to be introduced to rebut inadmissible evidence presented by the opposing party.
Term used in some jurisdictions for a temporary guardian or conservator. See Special Administrator.
A husband’s common law right to a life estate in his deceased wife’s property. Abolished in California. (Compare Dower).
An account established for a minor under the Uniform Transfers to Minors Act (UTMA) or Uniform Gifts to Minors Act (UGMA), managed by a custodian.
A person or entity responsible for managing property for another. Under UTMA, the person appointed to manage property for a minor. Also, the person holding the decedent’s original will (Custodian of the Will).
The care, control, and maintenance of a person (like a minor child) or thing.
French for “as near as possible.” A legal doctrine applied primarily to charitable trusts. If the original charitable purpose becomes impossible, illegal, or impractical to fulfill, a court may modify the trust terms to apply the funds to a new charitable purpose that approximates the grantor’s original intent as closely as possible. (Probate Code §15409).
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