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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 Oakland probate litigation lawyers.


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 likely will 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) entitled to receive money or property from an estate, trust or life insurance policy.

Codicil. An addendum or supplement to a will. A Court will execute codicils 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 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 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 Court to reject the will 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 will or testamentary instrument names the surviving spouse as beneficiary. This is 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.

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  • Probate is the legal process of administering a deceased person’s last will and testament or according to intestate law. Certain trusts only go into effect upon the death of the testator, and may therefore be part of a probate administration. California probate courts oversee probate administration and probate litigation.

  • Probate litigation is the term for a lawsuit when a party, such as an heir, beneficiary, creditor, third party or omitted spouse contests a will. Probate litigation also includes charges against fiduciaries of trusts or estates, or creditors’ claims against an estate.

  • There are several different reasons for contesting a will. For example, claims of undue influence and lack of capacity are common causes for probate litigation. Some individuals may argue that the will is defective, or that the estate trustee is breaching a fiduciary duty. If you are an omitted spouse or if your spouse leaves you less than required by California law, you may have a claim against the estate as part of your spousal rights.

  • A fiduciary duty is the obligation to act honestly, fairly and in good faith when handling the deceased person’s estate. There are multiple fiduciary duties that executors, administrators and trustees are legally required to follow, including keeping proper accountings of all investments, as well as money going in and out of the trust or estate. Violation of this duty or poor performance in administrating the estate may result in legal action by the estate’s beneficiaries.

  • Just as in all types of civil litigation, the law allows you to represent yourself in a probate proceeding. However, we strongly advise having a seasoned probate litigation lawyer handle your case to ensure that California probate law upholds your best interests.​

  • Even in death, a person is liable for their debts. For example, creditors may bring claims against a person’s estate after their death to receive payment.

  • A codicil is a document that makes small changes to the terms of a last will and testament. An individual may use codicils when they want to amend their last wishes without having to create an entirely new will. A codicil will only be legally valid and enforceable if executed in the same manner as a will. Codicils are particularly useful upon remarriage, additional children born, or new property acquired by an estate.​

  • If a person dies without a will, then California intestacy laws will dictate the division of their estates to the heirs at law. These laws will then distribute property and assets depending on the marital status, number of children and surviving relatives of the deceased individual.

About Triay Law Office

Probate litigation attorney Charles Triay has specialized in California probate litigation matters for over 30 years.

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4 Orinda Way Suite 200-Dorinda, CA 94563


4 Orinda Way Suite 200-D

Orinda, CA 94563


4 Orinda Way Suite 200-D

Orinda, CA 94563

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