Glossary of Probate Law Terms
Common Terms Used by Probate Litigation Attorneys
When you are considering probate litigation regarding a will, trust or estate, you may hear many different legal terms and concepts not familiar to the general public. The following list contains just a small fraction of the legalese you may come across while dealing with a will or trust, a contested accounting, omitted spouse lawsuits and probate litigation in general.
When dealing with estates, trusts and probate litigation, there is no substitute for qualified legal counsel. Contact the Triay Law Office today to speak with one of our experienced San Francisco probate litigation lawyers.
Common Probate and Trust Legal Terms
Abatement. A reduction in benefits or property in a trust or estate, when the estate does not have enough remaining property to pay each beneficiary in full.
Advancements. A lifetime gift made to an heir that will reduce the amount left by will or intestate.
Affidavit. A statement made in writing under oath that can be executed under penalty of perjury.
Appraisal. A valuation of real estate, business or personal property such as a car, musical instrument, artwork, antiques, jewelry, household furnishings. Proper appraisals may be necessary to value and distribute estates.
Appreciated property. Property that significantly increased in value or that is expected to increase in value, such as real estate, stocks, investments and works of art.
Beneficiary. A person (or entity, such as a non-profit or charity) who is entitled to receive money or property from an estate, trust or life insurance policy.
Codicil. An addendum or supplement to a will; codicils must be executed in the same manner as testamentary wills to be legally valid.
Community Property. Income or assets acquired by a couple over the course of their marriage that is automatically vested in each spouse. Only nine states, including California, are community property states.
Conditional Gift or Conditional Bequest. A gift or bequeath that will take place only if a certain stated condition is met. For example, a conditional bequest may be that a beneficiary is to receive a sum of money only if he or she has children at the time of the testator’s death.
Decedent. The person who passed away.
Escheat. Reversion of a person’s property to the state. This occurs only when there are no beneficiaries, heirs or descendants to take the property.
Escrow. Funds or property held by a third party in trust while the funds or property are the subject of a dispute.
Heir. Someone who is entitled to property after a relative dies intestate, or without a legally valid will, under state probate law.
Holographic Will. A handwritten last will testament that does not have to follow the strict requirements of a legal will, if executed property. While California does allow holographic wills in probate, it is always better to execute a will with a qualified attorney to avoid challenges. You do not want the will to be rejected as legally invalid.
Intestate. The term used when a person dies without a will. The state of California will then determine which heir receives what intestate property based on state probate law.
Probate Administration. The legal proceeding where a will is filed with a probate court. Then, an administrator or executor is appointed according to the will, the estate’s creditors will be paid and remaining property will be distributed to the beneficiaries or heirs.
Probate Litigation. The legal term for a lawsuit regarding a will, estate and/or trust. This can include contested wills, defective wills and trusts, breaches of fiduciary duties, omitted spousal rights, contested accountings and creditors’ claims.
Omitted Spouse. A surviving spouse can inherit property and assets from the estate of a deceased spouse. This is the case whether or not the surviving spouse was named as beneficiary in a will or testamentary instrument. This is also known as a “widow’s share”. An omitted spouse can sue an estate in probate litigation if he or she was left out of the will, or if he or she was left property worth less than their share required under law.
Testator.– An individual who creates and funds a trust, also known as a settlor.
Testamentary Will. As opposed to a living will, this document only goes into effect after death and will name beneficiaries to receive property from the estate.