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.
Monetary compensation awarded by a court to a person who has suffered loss or injury due to another’s wrongful act.
If a trustee breaches their duty by selling trust property they shouldn’t have, selling it improperly (e.g., for too low a price), or selling it to themselves without authorization, damages generally aim to restore the trust to the position it would have been in absent the breach. This could include recovering the property, the loss in value suffered by the trust, or any profit the trustee made from the improper sale, plus interest (Cal. Prob. Code § 16440).
When a trustee violates their duty of loyalty (e.g., through self-dealing or conflicts of interest), damages aim to either compensate the trust for any losses incurred or require the trustee to give up any personal profit they made due to the breach, plus interest (Cal. Prob. Code § 16440). Breaches involving disloyalty may also support claims for emotional distress damages under specific circumstances.
In California, monetary damages for emotional distress may be recoverable against a trustee in specific cases where a breach of fiduciary duty is proven, particularly breaches involving the duties of loyalty and fidelity (not mere negligence). The plaintiff must show that the trustee’s conduct was intentional or reckless, outrageous, and caused severe emotional distress.
If a trustee had a duty to sell trust property (e.g., to comply with diversification requirements or trust instructions) but failed to do so, causing a loss, the trustee may be liable for the amount the property would have sold for had it been sold properly, plus a reasonable rate of return or interest on those proceeds, minus the value (including appreciation, if any) of the property still held (Based on Restatement (Second) of Trusts § 209 and Cal. Prob. Code § 16440(a)(3)).
When a trustee makes an investment that violates the Prudent Investor Act or other trust terms, they may be liable for the difference between what the trust actually earned (or the value of the improper investment) and what it should have reasonably earned had the funds been properly invested, plus interest. Alternatively, they are liable for the loss or depreciation resulting from the improper investment. The trustee is typically charged with the measure resulting in the greater recovery for the trust (Based on Restatement (Second) of Trusts §§ 210, 211 and Cal. Prob. Code § 16440). Gains on separate, proper investments generally do not offset losses from distinct improper ones.
These are damages awarded in addition to compensation for actual losses, intended solely to punish the trustee for egregious misconduct and deter future similar behavior. Under California law, punitive damages require proof by clear and convincing evidence that the trustee’s breach of trust involved oppression, malice, or fraud (Cal. Civil Code § 3294). They are not awarded for ordinary negligence or simple breaches of trust.
The specific date a person died. A critical date for valuation of assets, determining heirs, and starting statutory deadlines. Established by a Death Certificate.
The fair market value of assets owned by the decedent as of the date they died. Used for estate tax purposes and often for calculating statutory probate fees and establishing basis for inherited assets.
Latin for “by law” (legally recognized) / “in fact” (existing in reality, even if not legally recognized).
Latin for “anew.” A standard of appellate review where the appellate court examines the issue without giving deference to the trial court’s decision (common for legal issues). (Contrast with review for “abuse of discretion” or “substantial evidence”).
Laws (largely abolished or restricted in California – see Evidence Code §1261) that historically limited the ability of an interested party to testify about transactions or conversations with the decedent when suing the estate.
Official legal document issued by the state/county certifying the date, place, and cause of a person’s death. Required to initiate probate, claim life insurance, access accounts, etc.
Taxes imposed due to death, such as federal estate tax or state inheritance tax (California currently has neither).
An unsecured bond, backed only by the general creditworthiness of the issuer.
An obligation to pay money or perform an act owed by one person (debtor) to another (creditor). Debts of the decedent must be addressed in probate.
A person who owes a debt. The decedent’s estate is responsible for paying the decedent’s debts.
The person who has died.
All the real and personal property (assets) owned by the decedent at the time of their death, and also the legal entity managed during probate.
In an A-B trust plan, this irrevocable trust holds assets funded using the deceased spouse’s estate tax exemption amount. It typically provides benefits (like income or support) to the surviving spouse but is structured so the assets “bypass” (are not included in) the surviving spouse’s taxable estate upon their later death, preserving the first spouse’s exemption.
A written statement made under penalty of perjury. Used frequently in California court proceedings instead of notarized affidavits. (Code of Civil Procedure §2015.5).
The document creating a trust and outlining its terms.
A court decision stating the rights and obligations of parties under a contract, will, or statute, without necessarily awarding damages or ordering action. Can be sought via a Petition for Instructions.
A formal judgment or order issued by a court, often used in probate contexts (e.g., Decree of Final Distribution).
Transferring private land for public use (e.g., dedicating land for a road).
A written legal document used to transfer ownership (title) of real property from one person (grantor) to another (grantee). Must be signed, acknowledged, and recorded.
A deed given by a property owner (borrower) to the lender to satisfy a mortgage debt and avoid foreclosure proceedings.
A document recorded by a lender (beneficiary of a Deed of Trust) releasing their lien on real property once the loan has been paid off. Important for clearing title in probate.
A common financing instrument in California used instead of a mortgage. Title is technically transferred to a neutral third party (trustee) who holds it as security for a loan owed by the borrower (trustor) to the lender (beneficiary). If the loan is defaulted, the trustee can sell the property through foreclosure.
Clauses in a deed limiting the future use of the property.
Making false statements that harm another person’s reputation (libel if written, slander if spoken). Could potentially arise in contentious family disputes related to estates.
Failure to perform a legal duty or obligation, such as failing to respond to a lawsuit or make loan payments.
A judgment entered against a party who fails to respond to a lawsuit or appear in court within the required time.
An ownership interest in property that can be terminated upon the occurrence of a specific condition.
The party against whom a lawsuit is filed. In probate, often called the Respondent.
Earnings that are taxed when received later, rather than when earned (e.g., retirement plan contributions). Requires careful handling for beneficiaries.
A personal judgment against a borrower for the remaining debt after a foreclosure sale fails to yield the full amount owed. Limited applicability in California, especially for purchase-money loans on residences. May be a claim against an estate if applicable.
A retirement plan where the employer promises a specified monthly benefit upon retirement, usually based on salary and years of service (e.g., traditional pension). Estate may have rights if participant dies before retirement.
A retirement plan where contributions are made by the employer and/or employee, but the final benefit depends on investment results (e.g., 401(k), profit-sharing plan). Account balance passes via beneficiary designation or to the estate.
Level or extent (e.g., degree of kinship, degree of proof required).
Unreasonable delay by a fiduciary in settling an estate or trust can be grounds for removal or surcharge.
To entrust a task or responsibility to another. Fiduciaries can delegate certain tasks (like investment management) but remain ultimately responsible and cannot delegate core fiduciary functions. Governed by Probate Code §16012, §16052.
The formal transfer of possession or ownership. Required for a valid gift or deed.
A formal request for payment or performance of an obligation.
Transfer of property, especially by lease. Also, commonly used to mean death.
A gift of a specific sum of money payable from a designated source (e.g., “$10,000 from my Wells Fargo account”). If the source is insufficient, it may be paid from general assets like a general bequest.
A pleading filed by a defendant/respondent challenging the legal sufficiency of the plaintiff’s/petitioner’s pleading, asserting that even if the facts alleged are true, they do not state a valid cause of action.
Person relying on another for support. Relevant for tax exemptions and sometimes family allowances.
Probate administration requiring court supervision and prior approval for many actions taken by the personal representative (e.g., selling property, paying debts, distributing assets). The default unless Independent Administration authority is granted.
A legal doctrine where revoking a first will is disregarded if the court finds the revocation was conditioned on a second will being valid, but the second will turns out to be invalid. The idea is the testator preferred the first will over intestacy. Application is complex.
A discovery method where a witness provides sworn testimony outside of court in response to questions from attorneys. The testimony is recorded stenographically or on video and can be used in court.
Decrease in value of an asset due to wear, tear, or obsolescence. Also, a tax deduction allowing recovery of the cost of certain assets over time.
A lawsuit brought by a shareholder on behalf of a corporation (or beneficiary on behalf of a trust) against a third party or management, alleging injury to the entity itself.
A person’s offspring in a direct line: children, grandchildren, great-grandchildren, etc. Synonymous with Issue. Includes adopted individuals under California law.
See Unlawful Detainer.
A court proceeding under Probate Code §11700 et seq. to determine who the rightful heirs or beneficiaries are when there is uncertainty or dispute about who should inherit estate property.
Acting based on another person’s promise or representation, resulting in harm when the promise is broken. Can be grounds for enforcing a promise even without a formal contract (promissory estoppel).
A gift of real property (land and buildings) made in a will. (Noun) Also, the act of giving real property in a will. (Verb)
A person or entity named in a will to receive a devise (gift of real property).
Electronic records, including online accounts (email, social media, financial), files stored electronically, domain names, cryptocurrencies, etc. California adopted the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA – Probate Code §870 et seq.) providing fiduciaries with procedures to access and manage digital assets after death or incapacity, subject to terms of service and user instructions.
Lack of full mental capacity, but not necessarily full incapacity. May be relevant in assessing ability to perform certain acts.
Initial questioning of a witness by the attorney who called the witness to testify.
A judge’s order in a jury trial directing the jury to return a specific verdict because the evidence overwhelmingly favors one side.
Member of the board governing a corporation. Fiduciaries may have duties if the estate holds controlling interest.
Physical or mental condition limiting a person’s ability. See Incapacity.
Repudiation or rejection of a voidable contract (e.g., a contract made by a minor).
Revocation of an attorney’s license to practice law.
Payment of funds from an estate or trust. Must be properly documented in accountings.
Release from an obligation to pay a debt (e.g., through payment, bankruptcy, or statute of limitations).
A court order releasing the personal representative, conservator, or guardian from their duties and liabilities after administration is complete and assets are distributed.
An heir’s, beneficiary’s, or trustee’s irrevocable and unqualified refusal to accept an interest in property gifted through a will, trust, inheritance, or other transfer. Must meet specific requirements under Probate Code §260 et seq. to be valid. The disclaimed property passes as if the disclaiming person had predeceased the donor or died before the interest was created. Often used for tax planning or to redirect assets.
An estate planning provision allowing the surviving spouse to “disclaim” (refuse) inherited assets after the first spouse’s death, redirecting those assets into a pre-established irrevocable trust (typically structured like a Bypass Trust). This offers post-mortem flexibility for estate tax planning.
Revealing relevant information. Fiduciaries have a duty to disclose material facts to beneficiaries and the court.
The formal pre-trial process in litigation where parties obtain evidence and information from each other and third parties through methods like depositions, interrogatories, requests for production of documents, requests for admission, and subpoenas. Governed by Code of Civil Procedure.
Power or right to make decisions based on one’s own judgment within legal limits. Fiduciaries may have discretion over investments or distributions, governed by terms of the instrument and fiduciary duties.
A distribution of trust income or principal that the trustee is authorized, but not required, to make based on their judgment, often guided by standards like HEMS.
A trust where the trustee has significant discretion over when, how much, and to which beneficiaries distributions of income or principal are made. Offers potential asset protection benefits.
Treating persons differently based on protected characteristics (race, gender, etc.). Prohibited in legal proceedings.
Intentionally excluding an heir or beneficiary from receiving any part of an estate through a will or trust. Must be clearly stated.
Termination of a lawsuit or petition by the court before a final judgment on the merits. Can be with prejudice (barring refiling) or without prejudice (allowing refiling).
The final settlement or distribution of property or a legal matter.
A clause in a will or trust that directs the transfer of property to beneficiaries.
See Alternative Dispute Resolution.
Being declared legally ineligible to serve in a role (e.g., judge, witness, fiduciary, beneficiary under certain circumstances like elder abuse).
Disagreement with a majority opinion, often referring to a judge’s dissenting opinion in an appellate case.
Legal term for divorce in California. Automatically revokes certain provisions in wills/trusts benefiting the former spouse unless the instrument provides otherwise (Probate Code §6122).
A person or entity entitled to receive property distributed from an estate or trust.
The process of paying out or transferring estate or trust assets to the beneficiaries or heirs according to the will, trust terms, or laws of intestacy. See Preliminary Distribution, Final Distribution.
A fiduciary’s duty under the Prudent Investor Act to invest trust or estate assets across different types of investments to reduce risk, unless circumstances or the governing instrument suggest otherwise. (Probate Code §16048).
The loss or surrender of property or rights.
A distribution of corporate profits paid to shareholders. Estate or trust income.
See Dissolution of Marriage.
A legal principle or rule.
Evidence presented in written form, such as contracts, letters, deeds, emails.
In California, registered domestic partners have substantially the same rights and responsibilities as spouses under state law, including inheritance and community property rights. (Family Code §297.5).
The place where a person legally resides with the intent to remain indefinitely. Determines which state’s laws primarily govern probate and potentially taxation. (Contrast with mere Residence).
The intent to make a gift, required for a valid transfer without consideration.
The recipient of a gift or the holder of a power of appointment.
The person making a gift or creating a trust (also Settlor, Grantor) or granting a power of appointment.
A wife’s common law right to a life estate in a portion of her deceased husband’s real property. Abolished in California. (Compare Curtesy).
The attorney who prepared the legal document (will, trust, etc.). Subject to specific rules regarding gifts received under the instrument (see Certificate of Independent Review).
The level of care and investigation that a reasonably prudent person would exercise in a particular situation, such as before purchasing property or making investment decisions. Expected of fiduciaries.
Constitutional guarantee (5th and 14th Amendments) requiring fairness in legal proceedings, including the right to adequate notice and an opportunity to be heard. Applies in probate court.
A California law, found in Probate Code sections 810 through 813, designed to protect the rights of individuals by establishing specific legal standards and procedural safeguards for determining mental capacity (competence) in various legal contexts. The DPCDA ensures fairness when a person’s ability to make decisions or be held responsible for their actions is questioned. It applies to determinations of capacity related to executing wills, trusts, contracts, powers of attorney, advance health care directives, managing finances, consenting to medical treatment, and eligibility for conservatorship.
An identical copy of an original document, executed at the same time (e.g., signing two copies of a contract). May sometimes substitute for the original.
A power of attorney that remains legally effective even if the principal (the person who granted the power) becomes mentally incapacitated. Ceases upon the principal’s death. Governed by Probate Code §4000 et seq.
Older term for a document appointing an agent for health care decisions. Now incorporated into the Advance Health Care Directive in California.
Unlawful constraint or pressure exerted upon a person to coerce them to perform an act (like signing a will or contract) against their will. Grounds for invalidating the document.
A legal or ethical obligation owed by one person to another (e.g., Fiduciary Duty, Duty of Care).
A long-term trust designed to benefit multiple generations while minimizing estate taxes and providing asset protection, often utilizing the generation-skipping transfer (GST) tax exemption. California modified the Rule Against Perpetuities, allowing trusts to potentially last longer than under common law.
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