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.
In California, property owned by a spouse or registered domestic partner before the marriage/partnership, or acquired during the marriage/partnership by gift, inheritance, or bequest. Also includes rents, issues, and profits generated from separate property, provided they are not commingled with community property in a way that makes tracing impossible. Each partner has sole management and control over their separate property, and it passes according to their will or intestate succession upon death (not subject to the other partner’s automatic half-interest like community property). (See also: Community Property, Quasi-Community Property)
Refers to simplified procedures under the California Probate Code used to transfer a decedent’s assets without undergoing full, formal probate administration when the total value of the qualifying estate assets is below a specific threshold (currently $184,500 for many procedures as of early 2025, but subject to change/inflation adjustments). Key procedures include the Affidavit for Collection of Personal Property (Probate Code § 13100 et seq.) and the Petition to Determine Succession to Real Property (Probate Code § 13150 et seq.). A separate procedure, Petition to Set Aside Small Estate (Probate Code § 6600 et seq.), applies to very small estates passing to a surviving spouse or minor children.
A formal request filed with the California Probate Court by an “interested person” (such as an heir, beneficiary, creditor, or co-fiduciary) under Probate Code § 1250. Filing this request requires the court clerk or the party administering an estate, trust, guardianship, or conservatorship to mail the requester copies of specific documents filed with the court (e.g., petitions, accounts, reports, notices of hearing), ensuring they stay informed about the proceedings.
An equitable remedy ordered by a court that compels a party to fulfill the exact terms of a contract, rather than simply paying monetary damages for breaching it. In the probate context, it might be sought to enforce a contract made by the decedent, such as a binding agreement to sell a unique asset like real estate.
Court-ordered payments from one spouse or registered domestic partner to the other for maintenance and support, typically arising from a judgment in a dissolution (divorce) or legal separation case. An ongoing spousal support obligation owed by the decedent can be filed as a creditor claim against their estate. An obligation owed to the decedent might be an asset of the estate.
A type of Durable Power of Attorney that only becomes legally effective (“springs” into effect) upon the occurrence of a specific future event outlined in the document itself. Most commonly, this trigger is the determination (usually by one or more physicians according to the document’s terms) that the principal (the person who created the document) has become legally incapacitated and unable to manage their own affairs.
The degree of caution, diligence, skill, and prudence legally required of a person in a particular role to avoid being deemed negligent. For fiduciaries in California (like executors, administrators, trustees, conservators), this generally means acting with the care, skill, prudence, and diligence that a prudent person acting in a similar capacity and familiar with such matters would use 1 under the circumstances (see Cal. Prob. Code § 16040 for trustees). Professionals may be held to a higher standard reflecting their expertise.
The legal right to initiate or participate in a specific court proceeding (e.g., file a petition, object to a petition, contest a will or trust) because the person or entity has a direct, tangible, and legally recognized interest in the outcome of the matter. Without standing, a party cannot pursue a claim or seek relief from the court.
Under California Probate Code § 17200(a) and § 24(c), generally any beneficiary of an irrevocable trust, including both current income beneficiaries and future remainder beneficiaries, has the legal right (standing) to file this type of petition.
Generally held by a beneficiary, co-trustee, or successor trustee.
Held only by an “interested person” whose direct financial interest would be affected by the will’s validity (e.g., an heir receiving less than intestacy, a beneficiary of a prior will) (Cal. Prob. Code § 48).
Held by the elder, their conservator, trustee, personal representative after death, or heirs under certain conditions (Cal. Welf. & Inst. Code § 15657.3).
Generally held by a trustee or beneficiary (Cal. Prob. Code § 17200).
Generally held by the settlor (if applicable), a co-trustee, or a beneficiary (Cal. Prob. Code § 15642).
Claims by beneficiaries regarding matters reasonably disclosed in a formal trustee or fiduciary account may be barred if not objected to within 3 years of receipt, or potentially shorter if specific notice is given (Cal. Prob. Code § 16460). Fraudulent concealment tolls the statute.
Generally 3 years from when the beneficiary received an account or report adequately disclosing the claim, or 3 years from when the breach was or reasonably should have been discovered if not adequately disclosed (Cal. Prob. Code § 16460). Subject to tolling rules.
After the settlor’s death, generally 120 days after a trustee sends proper notification to beneficiaries and heirs, or 60 days after a copy of the trust is sent in response to a request during the notice period, whichever is later (Cal. Prob. Code § 16061.7, § 19003). Different rules may apply if no notice is given or for challenging trusts during the settlor’s life.
A SLAPP suit is a civil lawsuit filed primarily to intimidate, silence, censor, or financially burden individuals or groups who are exercising their constitutional rights of free speech or petitioning the government (which includes participating in litigation). While often associated with disputes like developers suing community activists, the term can apply in various contexts where litigation appears aimed at chilling participation or speech rather than genuinely resolving a legitimate claim. Anti-SLAPP Motion (CCP § 425.16) can arise in California probate and trust litigation, particularly when claims (like malicious prosecution or sometimes breach of duty) are based directly on a party’s actions within the litigation process itself (e.g., filing a petition, making statements in court documents). However, their application to typical fiduciary duty claims or disputes arising from private conduct outside of litigation is complex and still developing.
A legal doctrine codified in California Probate Code § 2580 et seq., primarily used in conservatorships. It allows the Probate Court to authorize a conservator to take specific actions regarding the conservatee’s property that the conservatee lacks the capacity to take themselves (such as making gifts, creating or modifying trusts, or other estate planning steps). The court must find, after considering various factors, that the proposed action represents what the conservatee likely would have wanted or done if they currently had legal capacity, based on their known preferences, values, relationships, and existing estate plan.
Within the HEMS standard, “Support” generally refers to distributions intended to maintain the beneficiary’s accustomed standard of living. It focuses on enabling the beneficiary to live reasonably comfortably based on the lifestyle they were accustomed to prior to the trust’s creation or distributions commencing, or based on their general station in life. It typically encompasses regular living expenses such as:
A monetary liability imposed by the California Probate Court against a fiduciary (such as an executor, administrator, trustee, or conservator) personally. Its purpose is to compensate the estate, trust, beneficiaries, or conservatee for financial losses incurred due to the fiduciary’s improper actions or failure to act. A surcharge may be ordered when a fiduciary commits a breach of duty that results in financial loss. Common grounds include negligence in managing assets (e.g., failing to insure property, collect debts, or invest prudently according to the Prudent Investor Act), misappropriation or embezzlement of funds, self-dealing or conflicts of interest that cause harm, failure to make property productive, incurring unreasonable expenses, making improper payments or distributions, or other violations of the fiduciary’s duties of loyalty, care, and prudence under the California Probate Code. A surcharge is typically sought through an objection to the fiduciary’s accounting or a separate petition filed with the court.
In a typical A-B trust plan for married couples, this portion holds the surviving spouse’s share of assets after the first death. It is usually revocable by the survivor, and its assets are included in the survivor’s taxable estate.
A temporary order issued by the California Probate Court preventing a trustee from exercising their powers and performing duties while legal proceedings are ongoing. Suspension is typically sought via petition or emergency application to protect trust assets and beneficiaries from potential harm pending a final court decision, often regarding the trustee’s potential removal. Grounds for seeking suspension are usually based on preliminary evidence or serious allegations related to the grounds for removal (see Cal. Prob. Code § 15642), such as alleged breach of trust, trustee incapacity, immediate risk to assets, or other urgent circumstances requiring court intervention (pursuant to the court’s general powers, e.g., Cal. Prob. Code § 17206). A suspended trustee cannot act until the suspension is lifted or a final order (like removal) is issued, and the court may appoint a temporary trustee.
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