PROBATE GLOSSARY

Abatement – A reduction or decrease in amount of worth, usually applies to rent or taxes, when there are not sufficient funds to pay them in full.

Ademption – When property mentioned in a will cannot be given to a beneficiary because it no longer belonged to the deceased at the time of death. For example, the particular gift may have been destroyed, sold, or given away between the time of the will and the time of death.

Administrator with will annexed – A person appointed by the court to administer the estate of a person who died with a will, but this person was not named in the will to act as a personal representative. Also known as Administrator C.T.A. (CumTestamento Annexo).

Affidavit – A written statement or affirmation made under penalty of perjury that requires notarization.

Ancillary Administration – An administration of a decedent’s property located in a state other than the state of the decedent’s domicile.

Beneficiary – An individual or organization to whom a gift of property is made. A person who inherits when there is a will.

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

Codicil – An amendment or supplement to an existing will.

Community Property – Real or personal property that is owned in common by husband and wife as a kind of marital partnership. Either spouse has management and control of the community real and personal property; however, both spouses must join in a transfer of ownership or lease for more than one year of community real property or a gift of community personal property. All property acquired during marriage from earnings, and the earnings themselves, are community property. Property acquired by gift or inheritance is separate property, not community property

Conservatee – A person determined by the court to be unable to protect and manage their own personal care or financial affairs, or both. And, for whom the court has appointed a conservator.

Conservator – A person or organization appointed by the court to protect and manage the personal care or financial affairs, or both, of a conservatee. (See LPS Conservatorship)

Conservatorship – A court proceeding wherein a judge appoints a responsible person (conservator) to care for another person (conservatee) who cannot care for him/her self or his/her finances.

Custodian of the Will – The person in possession of the will when the person who wrote the will dies.

Contingent Beneficiary – A person who may share in an estate or trust depending upon the happening of an event.

Decedent – A person who has died.

Declaration – A written statement made under penalty of perjury..

Decedent – A person who has died.

Devisees and Legatees – Persons named by a decedent in his will. A bequest or devise generally refers to real property and a legacy of money or personal property.

Disclaimer – A refusal to accept, for example, a testamentary gift that is made in a prescribed manner and time.

Domicile – The specific location of a person’s permanent residence that determines, for many purposes, the laws that will govern his affairs. A person may have many residences, but he can have only one domicile. The domiciliary proceeding is that created in the jurisdiction of the decedent’s domicile.

Donee – A person who receives a gift from another.

Donor – A person who makes a gift to another.

Escheat – The term which describes the transfer of property to the state in the event a person dies leaving no valid will and no heirs at law surviving him.

Estate Taxes, Federal – The death taxes imposed by the federal government on the transfer of assets upon death.

Estate – A person’s total possessions (assets), including money, jewelry, securities, land, etc. These assets are managed by a fiduciary subject to a court order. E.g., guardianship estate, conservatorship estate, or decedent’s estate.

Executor – The person named in a will to carry out the directions as set forth in the will. This person is the personal representative of the decedent’s estate.

Ex Parte – A judicial proceeding granted without notice.

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.

General Power – Enables the donee to designate himself, his creditors, his estate, the creditors of his estate, or any other person, as owner of the subject property.

Gift Tax Annual Exclusion – Both California and federal law allow a donor to exclude an amount of gifts from taxation each year, if the gifts are of a present interest and to a specific individual. A present interest gift is one in which has an immediate unrestricted right of use, benefit, and enjoyment.

Grantor – The individual or corporation who makes a grant (transfer) of property to another person (e.g., grantor of a trust, grantor of a deed of property).

Guardian – A person appointed by the court to protect and manage the personal care or financial affairs, or both, of a minor (ward).

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 completed handwritten, dated and signed by the person making the will.

Inheritance Tax – A tax imposed on heirs who inherit property.

Inter Vivos Trust – A trust set up during the lifetime of a person to distribute money or property to another person or organization (as distinguished from a person who transfers money or property after death).

Intestate – Without a will. Opposite of Testate.

Intestate Succession – The order of who inherits the property when the decedent does not have a will.

Irrevocable Trust – Trust wherein the grantor has expressly released the power of revocation.

Joint Tenancy – A form of property ownership by two or more persons, often designated as “joint tenants with right of survivorship.” Joint tenants always own equal parts of joint tenancy property. When a joint tenant dies, his or her interest in the property automatically goes to the surviving joint tenant.

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 – An interest in property, the term of which is measured by the life of its owner.

Life Tenant – The person who receives the benefits from the real or personal property during his lifetime only.
The benefits stop when he dies.

Limited Conservatorship – A type of conservatorship for developmentally disabled adults.

LPS Conservatorship – A specific type of conservatorship, under the Lanternman-Petris-Short 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. The Public Guardian must file this matter. (See Conservator and Conservatee)

Minor – As used in the context of a guardianship, a person under the age of 18 who is placed in the care of a court appointed guardian.

Mortgage Life Insurance: A type of term life insurance often bought by mortgagors. The coverage decreases as the mortgage balance declines. If the borrower dies while the policy is in force, the debt is automatically covered by insurance proceeds.

Pretermitted Heir – One who would normally be beneficiary of the decedent but who is not mentioned in the will.

Personal Property – Anything owned by a person that can be moved such as money, securities, jewelry, etc.
(See Property)

Personal Representative – An administrator or executor appointed by the court to administer a decedent’s estate.
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.
.

Petition – 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.

Pour-over Will – A will that provides for the transfer, after or during the probate court proceedings, of all or part of the net assets of a decedent’s probate estate from the executor’s control to the control of a trustee who is in charge of a trust that was in existence immediately before the death of the deceased person (inter vivos trust).

Power of Appointment – The actual power of legal authority given by the trust or will of one person, the “donor” of the power, to a second person, the “done” of the power, which enables the second person to designate the manner of disposing of the property. A power of appointment may be general or special, as defined below.

Probate Administration – The legal process whereby a probate court supervises the marshalling of a deceased person’s debts and taxes and orders the property distributed according to decedent’s will, or in its absence,
to the deceased person’s heirs. The probate court has jurisdiction over the personal representative and the decedent’s assets.

Probate Court – The court that handles matters concerning wills and estates, such as the distribution of property or money to those named in a will. In California, the Probate Court also handles guardianships and conservatorships.

Probate Real Estate Sale – The transfer of legal title (ownership) of real property from the estate of the person who has died to his or her beneficiaries or to a buyer under the supervision of the Court.

Probate Referee – Before real property can be sold through probate, it must be appraised. This is done by a probate referee. In California, probate referees are appointed by the State Controller and assigned to a particular case by the court clerk. They are paid for this service directly by the estate, usually a percentage of the appraised value.

Property – Anything that can be owned such as money, securities, land, buildings, etc.
(See Personal Property and Real Property)

Quasi-community Property – In California only, that property acquired by a decedent while living outside California, which, if acquired in California, would have been community property. For federal estate tax purposes, quasi-community property is treated like separate property.

Real Property – Land and immovable objects on the land such as buildings. (See Property)

Remainder Interest – An ownership interest in property that will become a present interest after the present owner or life tenant has received all the property benefits to which he is entitled.

Residue – The remaining part of a decedent’s estate after the payments of debts and legacies.
Also called “residuary estate.”

Residuary Beneficiary – An ownership interest in property that returns to the original owner when the intervening interest expires.

Revocable Trust – A trust in which the person making the trust retains the power to revoke the trust.

Right of Representation – A method of distribution, sometimes referred to as “per stirpes,” whereby the share of distribution of a deceased beneficiary is divided equally among his children.

Separate Property – In California, a category of property between husband and wife that is not community property or quasi-community property, but that is owned separately by the husband or wife.

Settlor – Another word for grantor or trustor of a trust. The person who “settles” the assets into the trust.

Small Estates – A decedent’s estate may avoid probate and have personal property transferred directly to an heir if the decedent’s estate meets the requirements of California Probate Code § 13100 et. seq.

Special Power – Limits the donee as to the persons to whom he can designate as owners of the property over which he has a power of appointment. The limitation of appointment can be very specific (e.g., to a group consisting only of A’s children) but can never be the done, his estate his creditors, or the creditors of his estate because this would defeat the purpose of the special power, namely, to keep the appointive property from being taxed in the estate of the donee on his death.

Successor Fiduciary – The next person or organization appointed if a vacancy arises in a conservatorship, guardianship, or decedent’s estate because of the fiduciary’s death, removal, or resignation.

Tenancy In Common – A form of holding title to real or personal property by two or more persons. Because there is no right of survivorship, the legal relationships and results are very different from joint tenancy. Tenants in common need not hold equal interest, and on the death of a tenant in common, his interest will pass by his will or according to the laws of intestate succession.

Uniform Gifts to Minors Act – A law that permits a person (“donor”) to register stock, bank accounts, or insurance in the name of another (“custodian”) for the benefit of one who is at the time a minor (“beneficiary”) without preparing a formal trust document. In effect, the trust document has been written into the law. In so doing, the donor makes an irrevocable gift of the property to the minor, but the custodian holds, invests, reinvests, and applies the property for the benefit of the minor until his majority, at which time the property is turned over to the beneficiary. This is a simple, inexpensive way to make small gifts to a minor.

Will – A document that directs the disposition of a person’s property after death. Such a document should be made according to law (see California Probate Code § 6100 et. seq.) and is filed in a probate court after the person has died.