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.
A type of trust often used by married couples to minimize estate taxes by dividing assets into two trusts (Trust A – Survivor’s Trust and Trust B – Bypass/Credit Shelter Trust) upon the death of the first spouse.
The reduction or elimination of gifts (bequests or devises) in a will or trust when the estate’s or trust’s assets are insufficient to pay all debts, expenses, and gifts in full. California Probate Code dictates the order of abatement unless the instrument provides otherwise.
Language sometimes used in trust documents (e.g., “sole and absolute discretion”) seemingly granting the trustee the broadest possible authority to make decisions regarding trust administration or distributions, without being bound by standards like “reasonable” or HEMS. Despite the broad language, under California law (Probate Code § 16080-16081), no trustee’s discretion is truly unlimited. Even with “absolute discretion,” a trustee must still act reasonably, in good faith, in accordance with fiduciary duties, and not disregard the purposes of the trust or the interests of the beneficiaries. Their actions remain subject to review by the court for abuse of discretion.
A gift transferred completely and unconditionally.
A written summary of a court judgment that, when recorded with the County Recorder, creates a lien on real property owned by the judgment debtor in that county.
In California probate matters (involving estates, trusts, conservatorships, or guardianships), “abuse of discretion” refers to a failure by either a fiduciary (like an executor, administrator, trustee, conservator) or the Probate Court judge to exercise their legally granted decision-making power (discretion) in a way that is reasonable, impartial, fair, and in accordance with applicable law, fiduciary duties, and the purposes of the governing instrument (like a will or trust). Beneficiaries or other interested parties can petition the Probate Court to review the fiduciary’s actions. If the court finds an abuse of discretion, it can overturn the decision, compel the fiduciary to act differently, instruct the fiduciary, impose personal liability (surcharge) for any resulting damages, or even remove the fiduciary. The term also describes the standard used when an appellate court reviews a decision made by a Probate Court judge on matters where the judge had discretionary power (e.g., setting fees, approving settlements, appointing a fiduciary).
A provision in a loan agreement allowing the lender to demand immediate payment of the entire outstanding balance if certain conditions occur (like the borrower’s death or default). Relevant for estate debts.
Agreeing to the terms of an offer, creating a contract. Also, agreeing to serve as a fiduciary.
Acquiring title to additions or improvements to property as a result of natural growth or human labor.
A detailed report prepared by a fiduciary (executor, administrator, trustee, conservator) showing all financial transactions (income received, expenses paid, distributions made, assets on hand) of the estate, trust, or conservatorship during a specific period. Usually required by the court.
The process of accumulating or increasing over time (e.g., interest accruing on a debt).
A formal declaration before an authorized official (like a notary public) by a person who has signed a document, stating that the signature is voluntary and genuine. Required for recording deeds.
A written release from an obligation.
A lawsuit or legal proceeding brought in court.
Direct knowledge of a fact, as opposed to constructive notice.
Latin phrase referring to the collection of goods, often used for temporary authority granted to preserve estate assets before a regular administrator is appointed. See Special Administrator.
Latin for “for the suit.” A Guardian Ad Litem is a person appointed by the court to represent the interests of a minor or incapacitated person during a specific legal proceeding, including probate.
The failure of a specific gift (bequest or devise) because the specific property described in the will or trust is no longer owned by the decedent at the time of death (e.g., the specific car was sold).
The formal judgment or decision of a court resolving a legal matter.
A federal estate tax term referring to the gross estate less certain deductions (like funeral/admin expenses, debts). Used in calculating the taxable estate.
The process of managing a decedent’s estate, including identifying and gathering assets, paying debts and taxes, and distributing the remaining property to heirs or beneficiaries.
The person or institution appointed by the probate court to manage the estate of a person who died without a valid will (intestate). Has similar duties to an executor.
The person or institution appointed by the probate court to manage the estate of a person who died with a valid will, but where the named executor is unable or unwilling to serve, or no executor was named. (C.T.A. stands for cum testamento annexo, Latin for “with the will annexed”).
A child legally adopted. In California, adopted children generally have the same inheritance rights as natural-born children regarding their adoptive parents and relatives.
A legal document allowed under California law (Probate Code §4600 et seq.) where a person (the principal) appoints an agent to make health care decisions for them if they become unable to make those decisions themselves, and may also contain instructions about end-of-life care (living will provisions). Replaced older “Durable Power of Attorney for Health Care” and “Natural Death Act Declaration” forms.
A gift made by a person during their lifetime to a potential heir, intended by the donor (and acknowledged by the heir in writing) to be deducted from the heir’s share of the estate upon the donor’s death. California has specific rules about proving intent (Probate Code §6409).
A contested matter within a larger case (like probate) treated as a separate lawsuit, with formal pleadings and discovery.
A person who makes and signs an affidavit or declaration.
A written statement made under oath, sworn to be true before a notary public or other authorized official. Used for various purposes in probate, including small estate procedures.
A procedure under California Probate Code §13100 et seq. for collecting personal property of a decedent without formal probate administration if the total value of the estate’s qualifying assets is below a certain threshold (currently $184,500, adjusted periodically for inflation).
Relationship by marriage (e.g., relationship to spouse’s relatives). (Contrast with Consanguinity).
A formal declaration made under penalty of perjury by someone who declines to take an oath for religious or ethical reasons. Legally equivalent to an oath.
Property acquired by a decedent after making their will. Usually passes under the residuary clause unless the will specifies otherwise.
A child born after the execution of a will or trust. See Omitted Child.
The age at which a person attains full legal rights (18 in California).
A legal relationship where one person (the agent) acts on behalf of another (the principal) with the principal’s consent. See Power of Attorney.
A person authorized to act on behalf of another (the principal). An agent under an AHCD makes health care decisions; an agent under a POA makes financial decisions.
A theory viewing a partnership as an aggregation of individual owners rather than a separate legal entity (relevant for certain legal contexts, though partnerships are often treated as entities).
A mutual understanding between two or more parties.
An assumed name.
A claim or evidence that one was elsewhere when an alleged act took place.
A non-citizen. May affect inheritance or ability to serve as fiduciary in some contexts, but generally aliens can inherit in California.
The transfer of property or ownership rights.
Spousal support payments made after divorce. May be a claim against an estate.
A statement of fact asserted in a legal pleading that the party intends to prove.
The process of assigning receipts or disbursements between principal and income accounts in a trust or estate, governed by the Uniform Principal and Income Act (UPIA) in California unless the instrument provides otherwise.
A person or entity named to receive a gift if the primary beneficiary predeceases the decedent, disclaims the gift, or fails to meet a condition.
A date six months after the date of death that an executor may elect under federal estate tax law to value estate assets, potentially reducing estate tax liability if values have declined.
Methods for resolving legal disputes outside of formal court litigation, such as mediation or arbitration.
Uncertainty or lack of clarity in the meaning of language used within a legal document, such as a will or trust instrument. An ambiguity exists when wording can be reasonably interpreted in more than one way, making it difficult to determine the intended meaning or how to apply a specific provision to the facts. In California probate and trust matters, if a provision in a will or trust is found to be ambiguous (either on its face or a “latent ambiguity” that arises when applying the words to external circumstances, even if the words initially seem clear), the Probate Court has the power to interpret the document. To resolve the ambiguity and ascertain the true intent of the person who created the document (testator or settlor), the court may consider admissible extrinsic evidence—information outside the document itself, such as testimony about the circumstances surrounding its creation or potentially even testimony from the drafting attorney regarding drafting errors intended to reflect the settlor’s expressed intent.
Changeable or revocable. A will is ambulatory because the testator can change or revoke it anytime before death.
A revised version of an initial petition or pleading filed with the court, correcting errors, adding new information, or responding to court requirements.
A formal document that changes specific provisions of an existing trust agreement but leaves the rest of the trust intact. Must be executed according to the trust’s terms and potentially state law.
Latin for “friend of the court.” A person or organization not party to a lawsuit who is permitted by the court to file a brief presenting arguments or information on a point of law.
Paying off a debt gradually through periodic installments of principal and interest.
A donation of all or part of a human body upon death for transplantation, therapy, research, or education, often authorized in an AHCD, will, or donor registry.
A person from whom one is descended (e.g., parent, grandparent).
A probate proceeding conducted in a state other than the state where the decedent primarily resided (domicile), necessary to administer property (especially real estate) located in that other state.
A report filed yearly by a conservator or guardian detailing the status of the conservatee/ward and the management of their estate.
A contract providing for periodic payments to a named person (annuitant) for a specified term or for life. May be an estate asset or pass via beneficiary designation.
A legal determination that a marriage was void from its inception. Can affect inheritance rights.
See Premarital Agreement.
A state law (like California Probate Code §21110) providing that if a beneficiary who is kindred (related by blood) to the testator predeceases the testator, the gift does not fail (lapse) but passes to the beneficiary’s descendants, unless the will expresses a contrary intent.
Authority that a third party reasonably believes an agent possesses based on the principal’s actions or representations.
A request to a higher court (appellate court) to review and reverse the decision of a lower court (trial court).
Formally notifying the court that a party is participating in a legal proceeding, either in person, through an attorney, or by filing documents.
Fee paid to the court clerk when first appearing in a case.
The party who initiates an appeal.
A court that reviews decisions made by trial courts. In California, the Courts of Appeal and the California Supreme Court.
The party against whom an appeal is taken.
See Power of Appointment.
The division or allocation of rights or liabilities among several persons (e.g., apportionment of estate taxes among beneficiaries). See Proration.
The process of determining the fair market value of estate assets. Often performed by a court-appointed Probate Referee for non-cash assets in California probate.
A person qualified to estimate the value of property. See Probate Referee.
Assets (like real estate or stocks) that have increased in fair market value since they were acquired. This increase may be subject to capital gains tax upon sale, but inheritance often provides a Step-Up in Basis.
Taking something for oneself, potentially wrongfully (misappropriation). Also, allocating funds for a specific purpose.
Something belonging to or attached to a principal property, like an easement or outbuilding.
A form of ADR where a neutral third party (arbitrator) hears evidence and arguments and makes a binding decision to resolve a dispute.
A transaction conducted as if the parties were unrelated, acting in their own self-interest, without undue influence or pressure. Fiduciary transactions are held to higher standards.
Overdue, unpaid debt.
Ancestor.
A legal standard limiting a trustee’s discretion when distributing trust funds, often related to health, education, maintenance, and support (HEMS). Distributions limited by an ascertainable standard generally avoid gift tax implications for the trustee/beneficiary.
The value placed on property by the county assessor for property tax purposes. May differ significantly from fair market value.
An evaluation, such as a capacity assessment for a proposed conservatee or an assessment fee charged by a homeowner’s association.
Anything owned by the decedent (or held in trust, or owned by a conservatee) that has monetary value, including real estate, bank accounts, stocks, bonds, vehicles, personal belongings, digital assets, etc.
A type of trust designed (with varying degrees of legal effectiveness) to shield assets from the grantor’s future creditors. Often involves offshore jurisdictions or specific domestic statutes.
The transfer of rights or property from one person (assignor) to another (assignee).
An old legal term for a type of action involving breach of contract.
A legal process of seizing property to secure a potential judgment or satisfy an existing one.
To witness the signing of a document (like a will) and sign as a witness to that fact.
The paragraph in a formal will, usually preceding the witness signatures, stating that the witnesses observed the testator sign the will (or acknowledge the signature/will) and that they signed in the testator’s presence and the presence of each other, fulfilling statutory requirements.
A person licensed by the state to practice law.
Compensation paid to attorneys for legal services. In probate, may be Statutory Fees or Extraordinary Fees, both subject to court approval. Trust administration fees are typically based on reasonableness.
The chief law officer of the state. In California, the Attorney General has oversight responsibility for charitable trusts and may be involved in proceedings affecting them.
The person designated as the agent in a Power of Attorney document, authorized to act on behalf of the principal. (Not necessarily a lawyer).
A calculation used in some states (less common in CA community property context) to determine a surviving spouse’s elective share, including the value of the probate estate plus certain non-probate transfers.
Proving that a document or piece of evidence is genuine. In California law, authentication is the process required to prove that a document (such as a will or trust instrument) or a signature is genuine—meaning it was truly created or signed by the person claimed to have done so—before it can be admitted into evidence or legally relied upon (Cal. Evid. Code § 1400 et seq.). Establishing genuineness is crucial in probate and trust litigation. While expert handwriting analysis is often used, California law permits the authenticity of a signature or document to be established through lay (non-expert) testimony in several ways. Authenticity can be proven by testimony from anyone who personally witnessed the signing of the document (Cal. Evid. Code § 1413). It can also be established through testimony from a person familiar with the purported writer’s handwriting, provided that familiarity was gained by having seen the person write, receiving correspondence from them, acting upon documents supposedly written by them, or through other means providing personal knowledge of their handwriting (Cal. Evid. Code § 1416). Additionally, evidence showing that the document in question was received in response to a communication sent to the purported author can serve to authenticate it (Cal. Evid. Code § 1420).
Legal power or right to act. See Letters, Power of Attorney, Independent Administration.
A positive assertion of fact in a pleading.
Making a transfer void or ineffective, such as a fraudulent transfer.
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