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 Internal Revenue Code section allowing deferral of capital gains tax on the sale of business or investment property if the proceeds are reinvested in similar (“like-kind”) property according to specific rules and timelines. May be relevant if estate needs to sell appreciated property.
A condition in a will or trust, or the purpose of a trust, that is illegal or violates public policy (e.g., requiring a beneficiary to commit a crime or divorce). Such conditions or trusts are generally void.
An asset that cannot be easily sold or converted to cash without substantial loss of value (e.g., closely held business interests, unique real estate, collectibles). Can complicate estate administration and distribution.
A transfer or trust that appears valid on its face but lacks true substance because the grantor retains excessive control, potentially rendering it ineffective for certain purposes (like avoiding creditors or spousal rights).
Not relevant or important to the issue being decided.
Usually refers to spouse, parents, children, siblings. Definition may vary depending on context.
Legal protection from liability or prosecution. Fiduciaries may have limited immunity for actions taken under court order or specific statutory authority.
Diminution in value or function. Relevant for valuing assets or assessing capacity.
A fundamental fiduciary duty requiring the trustee or personal representative to treat all beneficiaries fairly and equitably according to the terms of the governing instrument and law, without showing favoritism. (Probate Code §16003).
Challenging the credibility of a witness during cross-examination by showing bias, prior inconsistent statements, lack of perception, etc.
A procedural device where a defendant brings a new party into the lawsuit, alleging that the new party is liable for all or part of the claim against the defendant.
Not expressly stated but inferred from actions, conduct, or circumstances (e.g., implied contract, implied trust, implied warranty).
A legal principle implied in every contract requiring parties to act honestly and fairly towards each other, not intentionally doing anything to undermine the benefits of the agreement.
Doctrine excusing performance of a contract if it becomes objectively impossible due to unforeseen circumstances. May apply to estate contracts or trust purposes (see Cy Pres).
An account held by a lender where the borrower makes periodic payments for property taxes and insurance, which the lender then pays when due. Relevant for managing estate real property.
Failure to exercise caution, care, or good judgment. A breach of the fiduciary duty of care/prudence.
Attributed or ascribed legally to a person, even if not directly caused or known by them (e.g., imputed knowledge, imputed income).
An endorsement on a negotiable instrument (like a check) that does not specify a payee, making it payable to the bearer.
Latin for “in chambers.” A judge’s private review of sensitive documents or evidence to determine if they should be disclosed or admitted in open court.
Latin for “in the manner of a pauper.” Permission granted by a court allowing a person who meets poverty guidelines to file documents and proceed with a lawsuit without paying court fees. Requires application and court approval.
Latin for “in these words.” Quoting text verbatim.
Distributing an asset in its actual form (e.g., shares of stock, a piece of artwork, real estate) rather than selling it and distributing the cash proceeds. Often preferred for assets with sentimental value or potential appreciation, or for tax reasons (basis).
Latin for “in the place of a parent.” Refers to a person assuming parental duties and responsibilities for a minor without formal adoption. May affect inheritance rights in limited circumstances.
The court’s power over a specific person (defendant/respondent), requiring them to appear and defend the lawsuit. Based on residency, presence, or minimum contacts within the jurisdiction.
Latin/English terms for representing oneself in court without an attorney.
Latin for “in the matter of.” Used in the title of legal proceedings that are not adversarial lawsuits between named parties, such as estate administrations, guardianships, or conservatorships (e.g., In re Estate of John Doe).
The court’s power over property located within its boundaries, allowing it to determine rights to that property even if the owners are outside the jurisdiction. Probate often involves in rem jurisdiction over estate assets.
A provision often included in wills or trusts designed to discourage beneficiaries from challenging the document by stating that anyone who files a contest will forfeit their inheritance or benefits under the instrument. California law (Probate Code §21310 et seq.) limits the enforceability of these clauses, generally enforcing them only against contests brought without probable cause. Specific procedures apply.
Lacking the legal mental ability (Capacity) to perform certain actions or manage one’s affairs. The standard for appointing a conservator or needing an agent under a POA/AHCD to act.
Marriage between close relatives prohibited by law. Void in California.
Rights associated with owning a life insurance policy, such as the power to change the beneficiary, surrender or cancel the policy, assign the policy, pledge it for a loan, or borrow against the cash value. Retaining incidents of ownership can cause the policy proceeds to be included in the owner’s taxable estate at death. Often transferred to an Irrevocable Life Insurance Trust (ILIT) to avoid this.
In trust and estate accounting, the return derived from principal assets, such as interest, dividends, rents, and ordinary profits from business operations. Governed by the Uniform Principal and Income Act (UPIA) unless the instrument specifies otherwise. (Contrast with Principal).
The beneficiary of a trust who is currently entitled to receive the income generated by the trust assets, often for their lifetime.
Income earned by the decedent before death but not received until after death (e.g., final paycheck, accrued vacation pay, IRA distributions, installment sale payments). IRD is included in the decedent’s gross estate for estate tax purposes AND is taxable income to the estate or beneficiary who receives it, subject to a potential income tax deduction for federal estate taxes paid on the IRD. (IRC §691).
Tax levied on income earned by individuals or entities. Estates and trusts are separate taxable entities and must file fiduciary income tax returns (Form 1041) if they meet income thresholds. Beneficiaries pay tax on distributable net income (DNI) received.
See Incapacity.
A legal doctrine allowing a will or trust to refer to and incorporate another existing, identifiable written document (not necessarily executed with testamentary formalities) as part of the will or trust, if the intent to incorporate is clear and the document existed when the will/trust was signed. (Probate Code §6130).
An intangible right related to real property (e.g., an easement).
A promise by one party to protect another party from loss or liability arising from a specific transaction or event. Fiduciaries may seek indemnity agreements from beneficiaries upon distribution.
A formal legal document, often referring to a deed or trust agreement.
California statutory scheme (Probate Code §10400 et seq.) allowing a personal representative (executor or administrator) granted this authority by the court to take many actions related to estate management (like selling property, paying claims, managing businesses) without prior court approval, using a streamlined Notice of Proposed Action (NOPA) procedure for major actions. Designed to simplify and expedite probate. Can be granted with Full Authority or Limited Authority (which excludes power to sell/exchange real property or grant options). Requires specific request in the petition; court may deny or beneficiaries may object.
Legal advice from an attorney who is not affiliated with the parties involved in a transaction. May be required or advisable in situations involving potential conflicts of interest or undue influence, such as when a beneficiary makes a gift to a fiduciary (see Certificate of Independent Review).
Outward signs or documents suggesting ownership of property (e.g., possession, title documents, paying taxes).
A transfer subject to Generation-Skipping Transfer (GST) tax made to a trust that could potentially benefit skip persons (beneficiaries two or more generations younger) in the future. GST exemption allocation rules apply.
A tax-advantaged retirement savings account. Passes via beneficiary designation outside probate. Distributions to beneficiaries are typically taxable income (IRD). Special rules apply for inherited IRAs.
Significant difference in the ability of parties to negotiate contract terms. May be relevant in challenging agreements involving vulnerable individuals.
Simplified probate procedures used in some states under the Uniform Probate Code. California uses Summary Administration procedures for small estates, which is similar in concept but different in detail.
A standard used in verifying legal pleadings, where the person signing states they believe the alleged facts are true based on information available to them, even if not based on direct personal knowledge.
Agreement given voluntarily after receiving full disclosure of the risks, benefits, and alternatives. Required for medical treatment (relevant for AHCDs/conservatorships) and sometimes advisable for beneficiary consent to fiduciary actions.
Violating another’s legal rights, especially regarding intellectual property (copyright, patent, trademark).
Assets received from a deceased person’s estate or trust, either through a will, trust terms, or intestate succession.
A tax imposed by some states (not California) on the recipients (heirs/beneficiaries) who inherit property. The tax rate often depends on the amount inherited and the relationship to the decedent. (Contrast with Estate Tax, which is levied on the decedent’s estate itself).
The first time a party comes before the court in a legal proceeding.
A court order requiring a person to do, or refrain from doing, a specific act. Can be temporary (preliminary injunction) or permanent. May be sought in probate litigation to prevent waste of assets or improper actions.
Harm or damage suffered by a person or property.
A false statement made without intent to deceive, but which induces another party to act. May be grounds for rescission.
Circumstances that would cause a reasonably prudent person to investigate further. Having inquiry notice may legally equate to having actual knowledge of what a reasonable investigation would have revealed.
A persistent, irrational belief in nonexistent facts, adhered to against all evidence and reason, which materially affects the provisions of a will. Can be grounds for invalidating the will if it caused the testator to dispose of property differently than they otherwise would have. Distinct from general mental incapacity.
Condition where liabilities exceed assets, or inability to pay debts as they become due. An insolvent estate requires careful adherence to statutory priorities for paying creditor claims (Probate Code §11420).
Legal right to examine documents, property, or records. Beneficiaries generally have the right to inspect trust records. Parties in litigation have rights to inspect evidence through discovery.
A sale where the purchase price is paid in periodic installments over time. Payments received after the seller’s death may constitute Income in Respect of a Decedent (IRD).
An established organization, especially one providing financial services (bank, trust company) or public service (hospital, university). Can act as fiduciary or be a beneficiary.
See Petition for Instructions. A request filed by a personal representative (Probate Code §9611) or trustee (Probate Code §17200) asking the court for guidance on how to handle a specific administrative issue, interpret the governing instrument, or determine the propriety of an action. Provides protection for the fiduciary if followed.
A formal written legal document, such as a will, trust, deed, contract, or power of attorney.
A sufficient financial or personal relationship to the insured person or property that justifies purchasing an insurance policy. Required to have a valid policy.
A contract (policy) where one party (insurer) agrees to pay another party (insured or beneficiary) for specified losses or upon a specified event (like death) in exchange for premium payments. See Life Insurance.
Assets that lack physical form but represent value, such as bank accounts, stocks, bonds, patents, copyrights, goodwill, digital assets. (Contrast with Tangible Personal Property).
Legal doctrine treating separate pages of a will as a single integrated document if they were present at the time of execution and intended by the testator to constitute the will.
Intangible creations of the mind protected by law, such as copyrights, patents, trademarks, trade secrets. Can be valuable estate assets requiring specialized management and valuation.
The mental state or purpose behind an action. Critical element in interpreting wills (Testamentary Intent), trusts (Settlor’s Intent), gifts (Donative Intent), and contracts. Courts strive to determine and effectuate intent based on the language used and surrounding circumstances.
An advanced estate planning tool. It’s an irrevocable trust specifically drafted so that it is considered owned by the grantor for income tax purposes (the grantor pays the income taxes on trust earnings, further reducing their estate), but not for estate tax purposes (the assets, including appreciation, are outside the grantor’s taxable estate). This structure allows for tax-advantaged wealth transfer, often through sales between the grantor and the IDGT.
Latin for “between the living.” Refers to actions taken during one’s lifetime.
A trust created during the grantor’s lifetime. Synonymous with Living Trust. Usually revocable but can be irrevocable.
(1) A charge paid for the use of money (loan interest). (2) A legal right, share, or claim in property. (3) A bias or personal stake that might affect impartiality (Conflict of Interest).
Broad term defined in Probate Code §48 referring to anyone who has a property right in or claim against an estate, trust, or conservatorship estate, or who otherwise has a legal interest that may be affected by the proceeding. Includes heirs, devisees, beneficiaries, children, spouses, creditors, fiduciaries, and potentially others. Interested persons are generally entitled to receive legal notice of court proceedings.
A person who witnesses the signing of a will and is also named as a beneficiary in that will. Creates a rebuttable presumption under Probate Code §6112 that the gift to the witness was procured by duress, menace, fraud, or undue influence. If the presumption is not rebutted, the interested witness takes only the share they would have received through intestacy (up to the value of the gift). Having disinterested witnesses avoids this issue.
Transfer of property between family members. May have specific property tax reassessment exclusion implications under California Propositions 58/193 and Proposition 19. Requires timely filing of claim forms.
An accounting covering only a portion of the administration period, or a court order made before the final resolution of the case.
Writing between the lines of an existing document. Handwritten changes made to a formal will after execution are generally ineffective unless the changes themselves are executed with the formalities required for a holographic or formal will. Can create ambiguity or litigation.
A temporary or interim court order made during the course of litigation, not resolving the entire case.
A person acting as a go-between for others.
The main body of federal tax laws enacted by the U.S. Congress, including estate, gift, GST, and income tax provisions relevant to estates and trusts.
The U.S. federal agency responsible for collecting taxes and enforcing tax laws.
A legal action allowing a party holding funds or property claimed by two or more conflicting parties (e.g., an insurance company facing claims from different alleged beneficiaries) to deposit the property with the court and require the claimants to litigate their rights between themselves, relieving the holder from liability. (Code of Civil Procedure §386).
See Construction. The process of determining the meaning of legal documents.
Written questions submitted by one party to another during the discovery phase of litigation, which must be answered in writing under oath within a specific time limit. (Code of Civil Procedure §2030.010 et seq.).
Legal procedure allowing a third party with an interest in an ongoing lawsuit to join the case as a party.
Dying without leaving a valid will.
The manner in which property is distributed under state law (California Probate Code §6400 et seq.) when a decedent dies without a valid will. The law specifies the order and share of inheritance based on the decedent’s surviving relatives (spouse/domestic partner, children, parents, siblings, etc.).
Fraud related to the substance of a legal proceeding itself (e.g., perjured testimony, falsified evidence). May be grounds for setting aside a judgment, but subject to time limits. (Contrast with Extrinsic Fraud, which prevents a fair hearing).
Receiving improper personal benefit from one’s position or from assets belonging to another (e.g., a fiduciary improperly benefiting from estate assets). Prohibited.
A detailed list of specific items of property. See Inventory and Appraisal.
A mandatory, detailed list and valuation of all assets comprising the probate estate as of the decedent’s date of death. Must be filed with the probate court by the personal representative within a specific timeframe (usually four months after Letters are issued). Assets are appraised by the personal representative (for cash items) and a court-appointed Probate Referee (for most non-cash items). Judicial Council Form DE-160/GC-040. (Probate Code §8800 et seq.).
A lawsuit brought by a property owner against the government claiming their property has been taken or damaged for public use without just compensation being paid.
Using money or assets with the expectation of generating income or appreciation in value. Fiduciaries have a duty to invest estate and trust assets prudently.
A professional who provides advice about securities investments. Trustees may delegate investment functions to advisors under certain conditions (Probate Code §16052).
A written document outlining the investment goals, strategies, risk tolerance, and constraints for managing a portfolio, often used by trustees.
A person invited onto property for business purposes. Property owner owes a duty of reasonable care. Relevant if estate includes business property.
A lien placed on property without the owner’s consent (e.g., judgment lien, tax lien). A transfer occurring by operation of law rather than voluntary act.
The legal grounds for no-fault divorce in California.
Failure to follow proper legal procedures.
Not pertinent or related to the matter at hand. Irrelevant evidence is generally inadmissible.
Harm that cannot be adequately compensated by monetary damages, often required to obtain injunctive relief.
Naming a beneficiary (e.g., on a life insurance policy) in a way that cannot be changed later without the beneficiary’s consent. Rare.
An irrevocable trust created specifically to own life insurance policies on the grantor’s life. If structured properly, helps remove the policy proceeds from the grantor’s taxable estate. Requires careful drafting and administration, including Crummey notices.
A trust that generally cannot be amended, modified, or revoked by the grantor once it is created and funded. Often used for tax planning (estate/gift tax reduction), asset protection, or qualifying for public benefits. Exceptions for modification or termination exist under certain circumstances (e.g., consent of all beneficiaries, court order under Probate Code §15403 et seq.).
Federal income tax return filed annually by estates or trusts that meet income or distribution thresholds, reporting income earned on assets after death or during trust administration.
Federal tax return filed for estates exceeding the federal estate tax exemption amount, reporting assets, calculating tax, and making certain elections (like portability). Due 9 months after death, extension available.
Form used by estates, trusts, and other entities to apply for a federal tax identification number from the IRS, required for opening bank accounts and filing tax returns.
(1) Direct descendants of a person: children, grandchildren, great-grandchildren, etc., including adopted individuals. (Probate Code §50). (2) A point of law or fact in dispute in a legal proceeding.
Specific expenses that can be subtracted from adjusted gross income on an income tax return to reduce taxable income. Relevant for fiduciary income tax returns.
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