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.
An irrevocable trust created at the first spouse’s death to hold assets for the surviving spouse’s benefit, qualifying for the estate tax marital deduction. This defers estate tax until the surviving spouse’s death, when the remaining assets are included in their taxable estate.
While often voluntary, California Probate Courts have the authority to order parties involved in disputes (e.g., contested trust or estate matters) to participate in mediation in good faith (Cal. Prob. Code § 17206). Although courts cannot force parties to settle, a significant California case, Breslin v. Breslin (2021) 62 Cal.App.5th 801, established that in court-ordered mediations involving trust disputes, interested parties (including beneficiaries who haven’t formally appeared in the litigation) who receive proper notice of the mediation but choose not to participate may be bound by the settlement agreement reached by those who did participate. This means non-participation after notice carries a significant risk of forfeiting the right to object to the mediated settlement later.
A confidential process where a neutral third party (the mediator) assists disputing parties in communicating, negotiating, and attempting to reach their own mutually agreeable settlement. The mediator facilitates the process but does not impose a decision; settlement is voluntary. Communications made during mediation are generally confidential and inadmissible in later court proceedings under the California Evidence Code (§§ 1115-1128).
Under California law (specifically Family Code § 6500, referenced by Probate Code § 54), a “minor” is an individual who is under 18 years of age. Because minors lack the legal capacity to manage their own affairs or represent themselves in court proceedings. If a minor is a beneficiary, heir, or party in a probate, trust, guardianship, or related court proceeding, their interests must typically be represented by a court-appointed representative. As highlighted in Probate Code § 1003(a), this often involves the appointment of a Guardian Ad Litem specifically to protect the minor’s interests within that legal matter. Minors generally cannot directly receive or manage significant assets or inheritances. Distributions intended for a minor may need to be managed by a court-appointed Guardian of the Estate, held by a custodian under the California Uniform Transfers to Minors Act (CUTMA), or kept in a trust until the minor reaches the age of majority (18) or a later age specified in a trust. If a minor’s parents are deceased or unable to care for them, the Probate Court handles the appointment of a Guardian of the Person (for care and custody) and/or a Guardian of the Estate (for property).
In probate, trust, or conservatorship administration, misappropriation typically refers to a fiduciary (like an executor, administrator, trustee, conservator, or agent under a power of attorney) improperly using assets they manage for their own personal benefit or for purposes not authorized by the will, trust, court order, or law. Misappropriation is a serious breach of fiduciary duty and can result in the fiduciary being held personally liable for the loss (surcharged), removed from their position, sued for damages, and potentially facing criminal charges like embezzlement.
Modification of Trust refers to the process of changing or amending the terms of an existing trust agreement after its creation. Under California law, the methods depend on whether the trust is revocable or irrevocable. A settlor (creator) can generally modify a revocable trust according to its terms or statutory procedures (Cal. Prob. Code § 15401, § 15402). Modifying an irrevocable trust is more complex but possible, typically requiring specific consent or court involvement. An irrevocable trust can be modified or terminated by written consent of the settlor and all beneficiaries (Cal. Prob. Code § 15404). Alternatively, all beneficiaries can petition the court for modification if it doesn’t violate a material trust purpose or the reasons for change outweigh conflicting purposes (Cal. Prob. Code § 15403). Furthermore, a trustee or beneficiary can petition the court to modify the trust if unforeseen circumstances arise that would defeat or substantially impair the trust’s purpose under its original terms (Cal. Prob. Code § 15409). The court may also authorize combining similar trusts or dividing one trust into separate trusts (Cal. Prob. Code § 15411, § 15412). The overall goal of modification is typically to allow the trust to adapt to changing laws, beneficiary needs, or circumstances while striving to fulfill the settlor’s original intent.
A procedural request made to a California court asking it to remove (strike) specific portions of an opponent’s legal pleading (such as a petition, objection, complaint, or answer) or to strike the entire pleading altogether. It is governed primarily by the California Code of Civil Procedure (§§ 435-437).
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