Glossary Of Common Probate Terms - San Diego County .

Glossary of Common Probate TermsCREDITORfinds these errors, he/she will usually sustain the demurrerA person (or institution) to whom money is owed.(state it is valid), but "with leave to amend" in order to allowCREDITOR’S CLAIMchanges to make the original pleading good.A document wherein a creditor demands payment for debtDEPENDENTowed by the decedent.In family law, refers to a person who is financiallyDsupported by another person, usually the parent. Injuvenile law, refers to a minor who is in the custody ofthe court because he or she has been abused, neglected,DECEDENTor molested.A person who has died.DEVELOPMENTAL DISABILITYDECISIONDevelopmental disability is a mental disability thatThe judgment rendered by a court after consideration of thebegins before an individual attains age 18, thatfacts and legal issues before it.continues indefinitely, and that is substantiallyDECLARATIONhandicapping. Developmental disabilities include, butA written statement that is unsworn but made under penaltyof perjury. All declarations must be dated and signed by thedeclarant and must show the place of execution and namethe state wherein the document was executed or otherwise,that the declaration is made under the laws of the state ofCalifornia.are not limited to, intellectual disability (fka mentalretardation), cerebral palsy and autism. Handicappingconditions that are solely physical, however, are rship".DEVISEA legal term that now means any real or personal propertyDECREEthat is transferred under the terms of a will. Previously, theA court order.term only referred to real property.DEEDA written legal document that describes a piece of propertyand outlines its boundaries. The seller of a propertytransfers ownership by delivering the deed to the buyer inexchange for an agreed upon sum of money.DEVISEEA person or entity who receives real or personal propertyunder the terms of a will.DIRECTIVE TO PHYSICIANA document which authorized termination of lifeDEMURRERA written response to a lawsuit which, in effect, pleads fordismissal on the point that even if the facts alleged weretrue, there is no legal basis for a lawsuit. Some causes ofsupport under specified conditions. California'svariation of a Living Will.DISBURSEMENTSaction may be defeated by a demurrer while others mayThe act of paying out money, commonly from a fund or insurvive. Some demurrers contend that the pleading issettlement of a debt or account payable.unclear or omits an essential element of fact. If the judgeDisclaimer: The intent of this glossary is to provide the layperson with a general understanding of terms commonly used in Probate Law.The definitions within this document are not comprehensive and are not intended to serve as a substitute for independent research of the law.5

Glossary of Common Probate TermsDISCHARGEThe term used to describe the court order releasing theadministrator or executor from any further duties regardingthe estate being subjected to probate proceedings. ThisEELECTIVE SHAREtypically occurs when the duties have been completed butRefers to probate laws that allow a spouse to take a certaincan also happen in the middle of the probate proceedingportion of an estate when the other spouse dies, regardlesswhen the executor or administrator wishes to withdraw orof what was written in the spouse’s will.is removed.ELISORDISCLAIMERWhen one of the parties is unable or refuses to signThe repudiation or renunciation of a claim or power vesteddocuments necessary to execute a court order, the courtin a person or which he/she formerly alleged to have. Themay appoint the Clerk of the Superior Court or andisavowal, denial, or renunciation of an interest, right, orauthorized representative to act as an elisor to sign theproperty imputed to a person or alleged to be his/hers.documents.DISTRIBUTEEENCUMBRANCESomeone who receives property from an estate.Any claim or restriction on a property’s title, a debt.DONEEEQUITYOne who receives a gift. Thus, the beneficiary of a trust isThe difference between the fair market value of your realgenerally referred to as the “donee.”and personal property and the amount you still owe on it, ifDONORany.One who, while alive, gives property to another, in the formERRATAof a trust.Errata refers to errors in printing or writing, such asDURABLE POWER OF ATTORNEYmisspellings, omissions, and other typographical errors.A written legal document that lets an individual designateanother person to act on his or her behalf, even in the eventthe individual becomes disabled or incapacitated.It is a means used to merely correct inadvertent errors,not to make substantive changes.ESCHEATA legal doctrine under which property belonging to aDURABLE POWER OF ATTORNEY FORdeceased person with no heirs passes to the state.HEALTHCAREA written legal document that allows an individual todesignate another person to act on his or her behalf withregard to their healthcare decisions.ESCROWMoney or documents, such as a deed or title, held by a thirdparty until the conditions of an agreement are met. Forinstance, pending the completion of a real estate transaction,the deed to the property will be held “in escrow.”Disclaimer: The intent of this glossary is to provide the layperson with a general understanding of terms commonly used in Probate Law.The definitions within this document are not comprehensive and are not intended to serve as a substitute for independent research of the law.6

Glossary of Common Probate TermsESTATEA person’s total possessions (assets), including money,jewelry, securities, land, etc. These assets are managed by afiduciary subject to a court order (e.g., guardianship estate,FFAIR MARKET VALUEconservatorship estate, or decedent’s estate).That price for which an item of property would beEXECUTORpurchased by a willing buyer, and sold by a willing seller,The person named in a will to carry out the directions as setforth in the will. This person is the personal representativeof the decedent’s estate.both knowing all the facts and neither being under anycompulsion to buy or sell.FIDUCIARYA person or organization that manages property for aperson, with a legal responsibility involving a high standardEXEMPLIFICATIONofA formal type of certification in which the Clerk of entatives, agents, or trustees).Court signs the certification of the document or record.The Presiding Judge then signs attesting to the fact ofFIDUCIARY DUTYthe identity of the Clerk of the Court, and that theAn obligation to act in the best interest of another party.signature is authentic. Finally, a Clerk of the Court signsFor instance, a corporation’s board member has a fiduciaryagain, this time attesting to the fact that the judge is aduty to the shareholders, a trustee has a fiduciary duty to thejudge of that county’s superior court, and that his/hertrust’s beneficiaries, and an attorney has a fiduciary duty tosignature is authentic.a client.EXHIBITFINDINGAny physical object introduced and identified in court andA determination of fact by a judicial officer or jury.received by the judge as evidence in a case.GEX PARTELatin that means “by or for one party.” Refers to situations inwhich only one party (and not the adversary) appears beforea judge.GENERAL ADMINISTATOROne who is appointed to generally administer the entireestate.EXPENSES OF ADMINISTRATIONThe expenses incurred by an executor or administrator incarrying out the terms of a will or in administering an estate.These include probate court fees, fees charged by anGRANTORThe person who transfers assets into a trust for the benefitof another. (Also known as a trustor.)executor or administrator, attorney’s fees, accountant fees,GUARDIANand appraiser’s fees.A person appointed by the court to protect and manage thepersonal care or financial affairs, or both, of a minor (ward).Disclaimer: The intent of this glossary is to provide the layperson with a general understanding of terms commonly used in Probate Law.The definitions within this document are not comprehensive and are not intended to serve as a substitute for independent research of the law.7

Glossary of Common Probate TermsGUARDIAN AD LITEMINHERITANCE TAXLatin for “guardian at law.” A person appointed by a courtCalifornia law no longer has a state inheritance tax as such.to represent the interests of an incapacitated, mentallyBut if federal estate tax is owed, some of the amount is paidhandicapped, or minor person in a court case.to the state and allowed as a credit on the amount of federalGUARDIANSHIPtax owed.The office, duty, or authority of a guardian. Also, theINTERLINEATIONrelation subsisting between guardian and ward.The act of writing between the lines of an instrument.HINTER VIVOS TRUSTA trust set up during the lifetime of a person to distributemoney or property to another person or organization (asHEIRdistinguished from a person who transfers money orA person who would naturally inherit property through aproperty after death).will, or from another who died without leaving a will.INTESTATEHOLOGRAPHIC WILLWithout a will. Opposite of testate.Generally, a will that is completely handwritten, dated andsigned by the person making the will.INVENTORY AND APPRAISALA list of all assets in the estate at the beginning of theIguardianship, conservatorship, or at the decedent'sdeath. Cash items are valued by the fiduciary; theprobate referee values all other items at their fair marketIN FORMA PAUPERISFrom the Latin: “in the way of a pauper.” The official waiverof court costs due to the insolvency of a filervalue.IRREVOCABLE LIVING TRUSTA trust created during the maker’s lifetime that does notIN PROPRIA PERSONA (IN PRO PER)From the Latin: “in one’s own proper person.” A case heard inwhich a party represents himself or herself without benefitallow the maker or anyone else to change it.ISSUEA person whoA term generally meaning all natural children and theirrepresents himself or herself in a court alone without thechildren down through the generations. Adopted childrenhelp of a lawyer is said to appear in pro per.are considered the issue of their adoptive parents and theINCAPACITYchildren of the adopted children (and so on) are alsoof any attorney; same as “in pro per.”considered issue. A term often used in place of issue is “linealThe lack of ability to act on one’s own behalf.descendants.”Disclaimer: The intent of this glossary is to provide the layperson with a general understanding of terms commonly used in Probate Law.The definitions within this document are not comprehensive and are not intended to serve as a substitute for independent research of the law.8

Glossary of Common Probate TermsJJUDICIAL OFFICERAn official of the judicial branch of government withJOINDERauthority to decide matters brought before the court. TheA legal term that refers to the process of joining two orterm "judge" may also refer to all judicial officers, includingmore legal issues together to be heard in one hearing orSupreme Court justices.trial. It is done when the issues or parties involvedJURISDICTIONoverlap sufficiently to make the process more efficientor fairer. It helps courts avoid hearing the same factsA court’s authority to rule on the questions of law at issuemultiple times or seeing the same parties return to courtin a dispute, typically determined by geographic location andseparately for each of their legal disputes.type of case.JOINTTENANCYWITHRIGHTKOFSURVIVORSHIPProperty that names a co-owner on its deed or title. At theKINDREDdeath of one of the co-owners, the other will become theAll persons described as relatives of the decedent under thesole owner of the property, regardless of what may beCalifornia Probate Code.conveyed in the will.LJUDGMENTA court’s official decision on the matters before it.JUDICIAL COUNCILLAPSEThe Judicial Council of California is the constitutionallyThe failure of a gift of property left in a will because whenmandatedthethe testator dies the beneficiary is deceased and no alternateadministration of justice in the state. The council is made uphas been named. California has a statute (termed an “anti-of judges, court executives, attorneys, and legislators. It waslapse” statute), which prevents gifts to relatives from lapsingestablished to standardize court administration, practice,unless the relative has no heirs of his or her own.and procedure by adopting and enforcing court rules.LEGACYJUDICIAL COUNCIL FORMSAn old legal word meaning a transfer of personal propertyThe Judicial Council of California has created many formsby will. The more common term for this type of transfer is(called "Judicial Council forms") to standardize thebequest or devise.preparation of court documents. People involved in lawsuitsLEGATEE(also called "litigants") must use Judicial Council forms thatAlso known as beneficiary. Person named in a will to receiveare labeled "mandatory" and may use forms that are al."Disclaimer: The intent of this glossary is to provide the layperson with a general understanding of terms commonly used in Probate Law.The definitions within this document are not comprehensive and are not intended to serve as a substitute for independent research of the law.9

Glossary of Common Probate TermsLETTERSsubmitted in support of a one-time hearing, such as anThe court document that establishes the authority to act asAccounting.a guardian, conservator, or personal representativeLPS CONSERVATORSHIP(executor or administrator). In decedent’s estates, anA specific type of conservatorship, under the Lanternman-executor’s letters are designated “letters testamentary,” and anPetris-Short (LPS) Act, which allows for involuntaryadministrator’s letters are “letters of administration.”detention and treatment of a person (the conservatee). ThisLIFE ESTATEconservatorship is a result of mental disorder and theThe type of ownership a person possesses in real estateconservatee appears to be a danger to himself/herself orwhen he/she has only the right of possession for his/herothers, or is gravely disabled. (See conservator and conservatee.)life, and the ownership passes to someone else after his/herMdeath.LIMITED CONSERVATORSHIPA type of conservatorship for developmentally-disabledadults.MARITAL DEDUCTIONA deduction allowing for the unlimited transfer of any or allproperty from one spouse to the other generally free ofLIVING TRUSTestate and gift tax.A trust set up while a person is alive and which remainsunder the control of that person during the remainder ofher life. Also referred to as “inter vivos trusts.”MINORA person under the age of 18. A minor is usually defined assomeone who has not yet reached the age of majority. TheLIVING WILLterm does not apply to an emancipated youth. As used inAlso known as a medical directive or advance directive. Athe context of a guardianship, a person under the age of 18written document that states a person’s wishes regardingyears of age who is placed in the care of a court-appointedlife-support or other medical treatment in certainguardian.circumstances, usually when death is imminent.MOTIONLODGMENTA motion is a formal request made to a judge for an orderA lodgment is a means of submitting documents to theor judgment. Motions can be filed for many purposes, suchcourt temporarily. Generally this practice is reservedas: to continue a trial to a later date, to get modification orfor a large number of exhibits that have either beenclarification of an existing order, for a judgment, fordeemed too large for the court’s file or are needed on adiscovery issues, for a rehearing or reconsideration, forlimited basis. Another example of when documentssanctions, or for many other purposes. Most motionsshould be lodged rather than filed is in the instance ofrequire the underlying motion to be made in pleading, andoriginal documents, such as bank statements, that area brief of legal reasons for granting the motion (often called"points and authorities"), written notice to the opposingparty and a hearing before a judge.Disclaimer: The intent of this glossary is to provide the layperson with a general understanding of terms commonly used in Probate Law.The definitions within this document are not comprehensive and are not intended to serve as a substitute for independent research of the law.10

Glossary of Common Probate TermsMOTION IN LIMINEPA motion made before a trial begins asking the court todecide whether particular evidence will be admissible. APECUNIARYmotion in limine is most often made to excludeevidence by a party who believes that evidence wouldMonetary; relating to money; financial; consisting of moneyprejudice the jury or judge against him or her. Foror that which can be valued as money.example, a defendant in a criminal trial might make aPER STIRPESmotion in limine to exclude evidence of previousBy right of representation; made of distribution incrimes.which the issue of a deceased devisee collectively takeNonly the share which their parent would have taken ifliving.PERSONAL EFFECTSNET ESTATEBelongings of a personal nature, such as clothes and jewelry.The value of all property owned at death less liabilities.PERSONAL PROPERTYNEXT OF KINAll items, both tangible and intangible, that are not realThe closest living relatives of a decedent, under theproperty. Anything owned by a person that can be movedCalifornia law governing intestate succession.such as money, securities, jewelry, etc. (As opposed to realNOTICEproperty e.g. house, land, crops, cabin, etc.)Information given to a person or entity of some act done,PERSONAL REPRESENTATIVEor about to be done.The generic title applied to the person who is authorized toNUNC PRO TUNCact on behalf of the decedent’s estate. Almost always, thisFrom the Latin: “now for then”, used when an order is issuedperson is either an administrator or executor appointed byon one date but is effective retroactively.the court to administer a decedent’s estate.NUNCUPATIVEPETITIONOral, not written, form of will – not valid in California.A written, formal request, properly filed with the court, forOa specific action or order. The petition is a pre-printed courtform in some cases, or written in proper format on pleadingpaper in others (e.g., petition for probate, petition forORDER TO SHOW CAUSEconservatorship, etc).Court order commanding a person to appear in court at aPETITIONERspecific date and time, and to show cause to the court’sOne who presents a petition to a court. The person whosatisfaction why he or she should not be compelled toopposes the prayer of the petition is called the “respondent.”perform a certain act (or cease a certain act).Disclaimer: The intent of this glossary is to provide the layperson with a general understanding of terms commonly used in Probate Law.The definitions within this document are not comprehensive and are n

Glossary of Common Probate Terms Disclaimer: The intent of this glossary is to provide the layperson with a general understanding of terms commonly used in Probate Law. The definitions within this document are not comprehensive and are not intended to serve as a substitute for independent