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.
See Preliminary Distribution.
A deposit made by a buyer as evidence of good faith when making an offer to purchase property. May be relevant in probate sales.
The right to use another person’s land for a specific purpose (e.g., right-of-way for access, utility lines). Can be an asset or encumbrance affecting estate property.
Often included as a standard for distributions from a trust (“health, education, maintenance, and support”).
Physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment resulting in harm, pain, or mental suffering to an elder (person 65 or older in California) or dependent adult. Financial elder abuse can invalidate gifts or wills and lead to significant damages (Welfare & Institutions Code §15600 et seq.). Specific provisions exist in the Probate Code regarding transfers to caregivers (§21380).
A choice between alternative rights or remedies (e.g., surviving spouse’s election regarding community property, tax elections available to fiduciaries).
A surviving spouse’s statutory right in some (non-community property) states to claim a certain percentage of the deceased spouse’s estate, regardless of what the will provides. Less relevant in California due to community property laws, but concepts like Omitted Spouse provide protection.
California law allows electronic signatures in many contexts, but specific rules apply. Currently, formal witnessed wills generally still require physical signatures, though remote witnessing rules were temporarily relaxed during the pandemic and legislative changes are considered. Digital execution of trusts may be permissible under certain conditions.
Legal process by which a minor is freed from parental control and assumes adult rights and responsibilities.
Fraudulent appropriation of property or funds entrusted to one’s care. A crime and a breach of fiduciary duty.
The government’s power to take private property for public use upon payment of just compensation. Can affect estate property.
Compensation provided by an employer beyond salary, such as retirement plans, health insurance, life insurance. May be significant estate assets or pass via beneficiary designation.
Intruding upon another’s property. Also refers to distributing trust principal to an income beneficiary.
Any claim, lien, charge, or liability attached to property that diminishes its value or restricts its use (e.g., mortgage, easement, judgment lien, property taxes). Title must usually be cleared in probate sales.
Signing one’s name on the back of a negotiable instrument (like a check) to transfer it to another party or receive payment.
Taking legal steps to compel compliance with a judgment, order, or contract.
The right to receive something. See Determination of Entitlement to Distribution.
A legally recognized organization, such as a corporation, partnership, LLC, or trust. Can own property, sue, and be sued.
The formal recording of a court’s final decision by the court clerk, starting the time limit for appeals.
Potential responsibility for cleanup costs associated with contaminated real property. Fiduciaries must exercise due diligence regarding estate property.
Constitutional guarantee that laws will be applied equally to all persons without unjust discrimination.
Relating to principles of fairness and justice, as opposed to strict legal rules. Probate courts are courts of law but apply equitable principles.
Doctrine recognized in some states (limited recognition in CA, primarily for inheritance from foster/stepparents under specific facts) where a child may be treated as legally adopted for inheritance purposes if the “parents” treated the child as their own but failed to complete formal adoption.
Doctrine treating real property as personal property (or vice versa) in certain circumstances based on intent (e.g., when a binding contract to sell real estate exists before death).
Division of property based on fairness, often used in divorce in non-community property states. California uses community property rules.
Legal principle preventing a party from asserting a fact or right inconsistent with a prior position or representation if another party reasonably relied on it to their detriment.
A lien imposed by a court based on fairness, rather than created by statute or contract.
Remedies granted by a court based on fairness when monetary damages are inadequate (e.g., injunction, specific performance, constructive trust).
The beneficial interest in property; the right to enjoy the benefits of ownership, even though legal title (formal ownership) may be held by someone else (e.g., beneficiaries of a trust have equitable title; the trustee holds legal title).
The value of an owner’s interest in property exceeding any liens or debts against it. Also refers to principles of fairness and justice administered by courts.
Federal law regulating employer-sponsored retirement and welfare benefit plans. Affects handling of retirement assets, beneficiary designations, and spousal rights.
Mistake. Legal errors may be grounds for appeal; clerical errors may be corrected by the trial court.
The reversion of property to the state (California) when a decedent dies without a will (intestate) and has no identifiable legal heirs under the laws of intestate succession. (Probate Code §6800 et seq.). Requires specific procedures by the Public Administrator or Attorney General.
An arrangement where documents, funds, or property are delivered to a neutral third party (escrow agent) to be held until specific conditions are met, then delivered according to instructions. Often used in real estate sales during probate.
All assets (real and personal property) and liabilities left by a person at death. Also refers to the legal entity managed during probate administration or the assets managed in a conservatorship/guardianship.
The process of arranging for the management and disposition of one’s assets during life and after death, using tools like wills, trusts, powers of attorney, health care directives, beneficiary designations, and property titling to achieve personal goals, minimize taxes/costs, and provide for beneficiaries.
The process by which the California Department of Health Care Services (DHCS) seeks repayment from the estates of deceased Medi-Cal recipients for the cost of certain benefits provided (e.g., nursing home care). Requires notice to DHCS during probate (Probate Code §9202). Subject to limitations and hardship waivers.
A tax imposed by the federal government on the transfer of assets from a person’s estate at death if the total value exceeds a large exemption amount (adjusted annually for inflation). California does not currently have a state estate tax.
Legal principle preventing a party from asserting a claim or right inconsistent with a prior position or action upon which another party detrimentally relied. See Equitable Estoppel, Promissory Estoppel.
Abbreviation for Latin et alii (and others). Used in case names or lists to indicate additional parties not explicitly named.
Abbreviation for Latin et sequentes (and the following ones). Used after a statute section number to indicate “and the sections that follow.”
Abbreviation for Latin et uxor (and wife). Older term sometimes seen in property deeds.
Standards of professional conduct. Attorneys and professional fiduciaries are bound by specific ethical rules.
Information presented in court to prove or disprove facts (e.g., testimony, documents, physical objects). Governed by the California Evidence Code.
Latin for “from one party.” Refers to court proceedings, orders, or communications requested by or involving only one party without notice to or participation by the opposing party. Allowed only in limited, specific circumstances (e.g., temporary restraining orders, appointment of temporary conservator/guardian if urgent need shown). Requires specific justification and procedures.
Questioning a witness under oath (direct, cross, redirect). Also, review of documents or records.
Court staff (often attorneys) who review probate filings before hearings, check for compliance with statutes and rules, and issue Probate Notes identifying deficiencies or questions for the parties/attorneys to address.
A formal objection to a court ruling. Also, specific circumstances where a general rule does not apply (e.g., exceptions to the creditor claim filing period).
The amount ($18,000 per recipient in 2024, adjusted for inflation) that a person can gift annually without using up their lifetime gift/estate tax exemption or paying gift tax.
Circumstances where a change in property ownership does not trigger reassessment for California property tax purposes (e.g., certain transfers between spouses, parents/children under Prop 19 limitations, transfers into/out of revocable trusts). Requires timely filing of exclusion claims.
A provision in a will, trust, or contract attempting to relieve a party (like a fiduciary) from liability for certain wrongful acts (e.g., negligence). Enforceability is limited by law and public policy, especially for gross negligence or willful misconduct. (Probate Code §16461).
To sign a legal document in the required manner to make it valid (e.g., execute a will). Also, to carry out or perform the terms of an order or judgment.
The legal process of enforcing a court judgment, usually by seizing and selling the debtor’s assets.
The person (male/female) or institution nominated in a will and appointed by the probate court to administer the decedent’s estate according to the will’s instructions. A type of Personal Representative.
A future interest in property held by a third party (not the grantor) that takes effect automatically upon the happening of a stated event or condition, cutting short a prior interest.
A sample used for comparison, such as a handwriting sample used to verify a signature’s authenticity.
An official copy of a court document, authenticated with seals and signatures of multiple court officials according to specific protocols. More formal than a certified copy and often required for use in out-of-state or federal proceedings (like ancillary probate).
Legal protection shielding certain property from creditors’ claims (e.g., homestead exemption, retirement account protections) or from taxation (e.g., estate tax exemption amount). Also, being excused from a duty.
Legal doctrine requiring a party to pursue all available administrative or internal procedures before seeking court intervention.
A document or object introduced as evidence in a court proceeding, usually marked for identification.
The discharge or payment of a debt or lien. In probate, refers to the question of whether a specific gift passes to the beneficiary free of any mortgage or lien attached to it (requiring payment from the residue), or if the beneficiary takes the gift subject to the encumbrance. California law (Probate Code §21131) generally requires the beneficiary to take subject to the debt unless the will clearly expresses intent for exoneration.
Costs necessarily incurred in managing and settling an estate or trust, such as court fees, fiduciary fees, attorney fees, appraiser fees, accounting costs, bond premiums, insurance, property maintenance, etc. These have high priority for payment from estate assets under Probate Code §11420.
A witness qualified by special knowledge, skill, experience, training, or education to provide opinion testimony on a technical or complex subject relevant to the case (e.g., medical expert on capacity, appraiser on valuation).
A trust created intentionally by the explicit written or oral declaration of the settlor (though trusts holding real property must be in writing). (Contrast with Implied Trust like resulting or constructive trusts).
Additional time granted by the court or agreement to perform an act or file a document.
See Non-Statutory Fee. Compensation awarded by the court to the personal representative or attorney for services beyond the routine duties of administration, requiring detailed justification and proof of necessity and benefit to the estate (Probate Code §10801, §10811).
Evidence outside the written terms of a document itself (e.g., testimony about conversations or circumstances surrounding execution). Generally inadmissible to contradict clear terms of a will or contract (Parol Evidence Rule), but may be allowed to interpret ambiguity or prove issues like fraud, duress, or mistake.
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