OUR GLOSSARY: ABC's for Probate Real Estate in California

BENEFICIARY

An individual or organization to which a gift of property is made. Person (or organization) receiving benefits under a legal instrument such as a will, trust, or life insurance policy. Except when very small estates are involved, beneficiaries of wills only receive their benefits after the will is examined and approved by the probate court. Beneficiaries of trusts receive their benefits directly as provided in the trust Instrument.

BEQUEATH

The first-person legal term used to leave someone personal property in the will, e.g., “I bequeath my antique car to my brother Jody.”

BEQUEST

The legal term used to describe personal property left in a Will.

BLOCKED ACCOUNTS

Cash or securities that are placed in a bank, trust company, insured savings and loan or insured brokerage account, subject to withdrawal only upon court order or statute.

BOND

A document guaranteeing that a certain amount of money will be paid to the victim if a person occupying a position of trust does not carry out his legal and ethical responsibilities. If an executor, trustee or guardian who is bonded wrongfully deprives a beneficiary of his/her property, the bonding company will replace it, up the limits of the bond.

BYPASS TRUST

A trust into which just enough of a decedent’s estate passes, so that the estate can take advantage of the unified credit against federal estate taxes. Also known as credit-shelter trust, A-B trust, or marital life estate trust.

DECEDENT

A person who has died.

DEED

A written legal document that describes a piece of property and outlines its boundaries. The seller of a property transfers ownership by delivering the deed to the buyer in exchange for an agreed upon sum of money.

DEPENDENT

In family law, refers to a person who is financially supported by another person, usually the parent. In juvenile law, refers to a minor who is in the custody of the court because he or she has been abused, neglected, or molested.

DEVELOPMENTAL DISABILITY

Developmental disability is a mental disability that begins before an individual attains age 18, that continues indefinitely, and that is substantially handicapping.

DEVISE

A legal term that now means any real or personal property that is transferred under the terms of a will. Previously, the term only referred to real property.

DEVISEE

A person or entity who receives real or personal property under the terms of a will.

DISBURSEMENTS

The act of paying out money, commonly from a fund or in settlement of a debt or account payable.

DISCHARGE

The term used to describe the court order releasing the administrator or executor from any further duties regarding the estate being subjected to probate proceedings. This typically occurs when the duties have been completed but can also happen in the middle of the probate proceeding when the executor or administrator wishes to withdraw or is removed.

DISTRIBUTEE

Someone who receives property from an estate.

DONEE

One who receives a gift. Thus, the beneficiary of a trust is generally referred to as the “donee.”

DONOR

One who, while alive, gives property to another, in the form of a trust.

DURABLE POWER OF ATTORNEY

A written legal document that lets an individual designate another person to act on his or her behalf, even in the event the individual becomes disabled or incapacitated.

DURABLE POWER OF ATTORNEY FOR HEALTHCARE

A written legal document that allows an individual to designate another person to act on his or her behalf with regard to their healthcare decisions.

FAIR MARKET VALUE

That price for which an item of property would be purchased by a willing buyer, and sold by a willing seller, both knowing all the facts and neither being under any compulsion to buy or sell.

FIDUCIARY

A person or organization that manages property for a person, with a legal responsibility involving a high standard of care (e.g., conservators, guardians, personal representatives, agents, or trustees).

FIDUCIARY DUTY

An obligation to act in the best interest of another party. For instance, a corporation’s board member has a fiduciary duty to the shareholders, a trustee has a fiduciary duty to the trust’s beneficiaries, and an attorney has a fiduciary duty to a client.

HEIR

A person who would naturally inherit property through a will, or from another who died without leaving a will.

HOLOGRAPHIC WILL

Generally, a will that is completely handwritten, dated and signed by the person making the will.

JOINT TENANCY WITH RIGHT OF SURVIVORSHIP

Property that names a co-owner on its deed or title. At the death of one of the co-owners, the other will become the sole owner of the property, regardless of what may be conveyed in the will.

JUDGMENT

A court’s official decision on the matters before it.

JUDICIAL OFFICER

An official of the judicial branch of government with authority to decide matters brought before the court. The term "judge" may also refer to all judicial officers, including Supreme Court justices.

JURISDICTION

A court’s authority to rule on the questions of law at issue in a dispute, typically determined by geographic location and type of case.

LAPSE

The failure of a gift of property left in a will because when the testator dies the beneficiary is deceased and no alternate has been named. California has a statute (termed an “anti-lapse” statute), which prevents gifts to relatives from lapsing unless the relative has no heirs of his or her own.

LEGACY

An old legal word meaning a transfer of personal property by will. The more common term for this type of transfer is bequest or devise.

LEGATEE

Also known as beneficiary. Person named in a will to receive property.

LETTERS

The court document that establishes the authority to act as a guardian, conservator, or personal representative (executor or administrator). In decedent’s estates, an executor’s letters are designated “letters testamentary,” and an administrator’s letters are “letters of administration.”

LIFE ESTATE

The type of ownership a person possesses in real estate when he/she has only the right of possession for his/her life, and the ownership passes to someone else after his/her death.

LIMITED CONSERVATORSHIP

A type of conservatorship for developmentally-disabled adults.

LIVING TRUST

A trust set up while a person is alive and which remains under the control of that person during the remainder of her life. Also referred to as “inter vivos trusts.”

LIVING WILL

Also known as a medical directive or advance directive. A written document that states a person’s wishes regarding life-support or other medical treatment in certain circumstances, usually when death is imminent.

LPS CONSERVATORSHIP

A specific type of conservatorship, under the Lanternman-Petris-Short (LPS) Act, which allows for involuntary detention and treatment of a person (the conservatee). This conservatorship is a result of mental disorder and the conservatee appears to be a danger to himself/herself or others, or is gravely disabled.

NET ESTATE

The value of all property owned at death less liabilities.

NEXT OF KIN

The closest living relatives of a decedent, under the California law governing intestate succession.

NUNCUPATIVE

Oral, not written, form of will – not valid in California.

PARTITION

A partition is a term used in real property law to describe an act to divide up a concurrent estate into separate portions representing the proportionate interests of the owners of property. It is sometimes described as a forced sale.

PECUNIARY

Monetary; relating to money; financial; consisting of money or that which can be valued as money.

PER STIRPES

By right of representation; made of distribution in which the issue of a deceased devisee collectively take only the share which their parent would have taken if living.

PERSONAL EFFECTS

Belongings of a personal nature, such as clothes and jewelry.

PERSONAL PROPERTY

All items, both tangible and intangible, that are not real property. Anything owned by a person that can be moved such as money, securities, jewelry, etc.

PERSONAL REPRESENTATIVE

The generic title applied to the person who is authorized to act on behalf of the decedent’s estate. Almost always, this person is either an administrator or executor appointed by the court to administer a decedent’s estate.

PETITION

A written, formal request, properly filed with the court, for a specific action or order. The petition is a pre-printed court form in some cases, or written in proper format on pleading paper in others (e.g., petition for probate, petition for conservatorship, etc).

PETITIONER

One who presents a petition to a court. The person who opposes the prayer of the petition is called the “respondent.”

PLEADINGS

In a civil case, the allegations by each party of their claims and defenses.

POWER OF ATTORNEY

A written legal document that gives an individual the authority to act for another.

PREDECEASED SPOUSE

The term applied to a spouse who has died before the decedent while married to him or her.

PRETERMITTED HEIR

A child or spouse who, under certain circumstances, is not mentioned in the will and who the court believes was accidentally overlooked by the testator when making his/her will.

PROBATE

The judicial process in which an instrument purporting to be the will of a deceased person is proven to be genuine or not; lawful distribution of the decedent’s estate. The legal process of administering a will. Also, the judicially supervised process for marshaling a decedent’s assets, paying proper debts, and distributing the remaining assets to the persons or entities entitled to them. An estate may be probated even if there is no will.

PROBATE ESTATE

All the assets owned at death that require some form of legal proceeding before title may be transferred to the proper heirs. Property that passes automatically at death (property in trust, life insurance proceeds, property in a “pay-on-death” account or property held in joint tenancy) is not in the probate estate.

PROBATE EXAMINER

The Probate Examiner examines files and documents in pending probate matters set for hearing, providing technical, procedural and legal review to ensure that matters before the court have proper notice and complete documents for a court ruling. The Examiner’s work-product is then posted prior to the hearing date for the parties to review and correct deficiencies (or defects) prior to the hearing.

PROBATE REFEREE

An official appointed by the California State Controller to value all property (except for cash type items) in probate, small estate petitions, conservatorship, and guardianship matters filed with the court. Probate Referees also assist trustees in valuing assets in non-probate matters.

PUBLIC ADMINISTRATOR

A publicly appointed person who handles the administration of an estate when no other person has been appointed as executor or administrator.

PUBLIC GUARDIAN (PUBLIC CONSERVATOR)

An appointed or elected county officer (and staff) authorized by law to serve as guardian or conservator.

REAL PROPERTY

Land and all the things that are attached to it. Anything that is not real property is personal property and personal property is anything that isn’t nailed down, dug into or built onto the land. A house is real property, but a dining room set is not.RECEIPTS

RECEIPTS

All cash or other assets of the estate received by the fiduciary, other than those listed on the inventory and appraisement. Receipts must be reported to the court on a schedule in the periodic accounting.

RESIDUARY ESTATE

Also known as residue of the estate. Portion of the estate left after bequests of specific items of property are made. Often the largest portion.

RESIDUARY LEGATEE

The person or persons named in a will to receive any residue left in an estate after the bequests of specific items are made.

REVOCABLE LIVING TRUST

A trust created during the maker’s lifetime that can be changed. Allows the creator to pass assets on to choose beneficiaries without going through probate.

RIGHT OF SURVIVORSHIP

In a “joint-tenancy” or “community property with right of survivorship,” the property automatically goes to the co-owner if the other co-owners dies.

TANGIBLE PERSONAL PROPERTY

Personal property that takes a tangible form, such as automobiles, furniture and heirlooms.

TAXABLE ESTATE

The fair market value of all assets owned by a decedent at date of death (gross estate) less certain allowable deductions, such as debts of the decedent, last illness and funeral expenses, and expenses of administering the decedent’s estate (attorney’s fees, court costs and newspaper publication fees).

TENANCY IN COMMON

A type of joint ownership that allows a person to sell his share or leave it in a will without the consent of the other owners. If a person dies without a will, his share goes to his heirs, not to the other owners.

TESTAMENTARY DISPOSITION

A disposition of property in a will.

TESTAMENTARY TRUST

A trust created by the provisions in a will. Typically comes into existence after the writer of the will dies.

TESTATE

A person who has made a will or who has died leaving a valid will; opposite of intestate.

TESTATOR

The person who makes a will.

TITLE

Ownership of property.

TOTTEN TRUST

A bank account in your name for which you name a beneficiary. Upon the death of the named holder of the account, the money transfers automatically to the beneficiary.

TRANSFER AGENT

A representative of a corporation who is authorized to transfer ownership of a corporation’s stock from one person to another.

TRUST

A written legal instrument created by a grantor during his or her lifetime or at death for the benefit of another. Property is given to a trustee to manage for the benefit of a third person. Generally the beneficiary gets interest and dividends on the trust assets for a set number of years. A legal arrangement under which one person or institution (called a “trustee”) controls property given by another person (termed a “trustor”, “grantor” or “settler”) for the benefit of a third person (called a “beneficiary”). The property itself is sometimes termed the “corpus” of trust.

TRUSTEE

The person named in a trust document who will manage the property owned by the trust and distributes any income according to the document. A trustee can be an individual or a corporate fiduciary.

TRUSTOR

The person who transfers assets into a trust for the benefit of another. (Also known as a “grantor.”)

VESTING

Expression of the form of legal title by which property is held. Fiduciaries generally should vest legal title in themselves expressly in their fiduciary capacity. (E.g., "John Smith, as Conservator of the Estate of Bill Jones.")

NO PROBATE TERMS DEFINED

NO PROBATE TERMS DEFINED