Website Glossary

Disclaimer: This information does not, nor is it intended to, create an attorney-client relationship, but is offered solely for informational purposes. Since the facts of each case are different, it is important to seek out qualified counsel with whom complete information can be shared and assessed under an attorney-client privilege so that competent and tailored advice can be provided. The information in this glossary applies to California only.

Administrator C.T.A. – If the person named in the Will as executor does not serve as personal representative of the estate for any reason, the person whom the Superior Court appoints as personal representative is referred to as the “Administrator C.T.A.”, which is an abbreviation from the Latin words meaning “administrator with Will annexed.” 

Administrator of the Estate – A person appointed by the Superior Court to administer the estate of a deceased person who died intestate, i.e. without leaving a will.

Administratrix – an outdated term referring to a female administrator. 

Advance Health Care Directive (AHCD) – An Advance Health Care Directive is a legal document that allows you to make sure that your health care wishes are carried out if for any reason you lose the ability to make such decisions for yourself.  By signing an Advance Health Care Directive, you appoint another person to be your “health care agent."  If you become unable to make medical decisions for yourself (for example, you become disabled by Alzheimer's Disease or you become comatose as a result of illness or accident), your health care agent will have legal authority to make decisions for you about your medical care.  You may appoint an alternate health care agent, in the event your first agent cannot act (for example, the person named as your first agent is out-of-town and cannot be reached or otherwise declines to act).

Beneficiary – A person who is designated to receive funds or other property from a will, a trust or insurance policy.

Bond (Also probate bond) – May be ordered by the court to help protect the estate, its beneficiaries or a conservatee from fraud, embezzlement or other illicit acts by the personal representative.

Breach of Fiduciary Duties – In general, the breach of fiduciary duty falls under three basic categories: breach of reasonable care (negligence); breach of duty of loyalty and/or breach of confidentiality.  In addition, intentional fraud (fiduciary fraud) and negligent misrepresentation are also breaches of fiduciary duties.

Codicil – A legal document that modifies or revokes specific provisions of a person’s will.  For a codicil to be effective, the document must be signed and witnessed just as when a will is signed.

Conservator – A conservator is a person appointed by the court to assist an adult who is unable to manage his or her own affairs.  Conservatorship proceedings are usually filed in the probate department of the Superior Court.  Two of the most common types of conservatorships are conservator of the estate and conservator of the person.  The court grants specific powers to each type of conservatorship, and a conservator must be very aware of the powers they are asking the court to authorize.

Conservatorship of the Estate – The court will appoint a conservator of the estate if the conservatee is unable to manage his or her assets or is susceptible to financial exploitation.  A conservator of the estate collects the conservatee's income; pays bills; invests the conservatee's assets; and manages the conservatee's property.

Conservatorship of the Person – The court will appoint a conservator of the person if the conservatee is unable to provide for his or her own physical health, food, clothing, or shelter.  A conservator of the person decides where the conservatee will live; often has authority to make medical decisions for the conservatee; and coordinates the conservatee’s overall care plan. 

Court order (In a conservatorship) – Once the court orders the establishment of a conservatorship, the judge will sign a court order which is usually provided by the attorney representing the proposed conservator.   The court order sets forth the specific details of the conservatorship, including findings as to the capabilities and rights of the conservatee, as well as the specific powers of the conservator.  Although the court order is signed by the judge hearing the matter, the appointment of the conservator is NOT effective until Letters are issued (See Letters)

Decedent – From the Latin word decedere.  A decedent is someone who has died, usually someone who has recently passed.

Dependent Adult Abuse – In California, legislation specifically created to protect elders also includes protections for younger adults who have disabilities that make them vulnerable to being abused.  When the victim of abuse is under the age of 65, the harm is referred to as dependent adult abuse. 

DPAHC – Durable Powers of Attorney for Health Care – See Advanced Health Care Directive (AHCD).

Elder Abuse – Elder abuse generally refers to harming a person who is age 65 or older.  Such harm may be physical, mental, or financial.  The harm may result from intentional acts or from mere neglect.  In California, elder abuse can be both criminal and civil.  In civil law, elder abuse is defined as physical abuse, neglect, financial abuse, abandonment, isolation, abduction or any other treatment resulting in physical harm, pain or mental suffering.

Estate – In probate, an estate is the net worth of a person’s assets – cash, investments, property of any kind – less all liabilities at the time of death.

Estate Planning – The making of a plan that names whom you want to receive the things you own after you die.  Estate planning typically attempts to eliminate uncertainties over the administration of a probate and the reduction of taxes and other expenses.

Execution of a will – The actual signing of a will.  For the will to be valid, the person signing the document must be of sound mind and know what they signing; and witnessed by two adults who should not be beneficiaries of the will.  The will does not need to be notarized, and notarization does not take the place of witnesses.  The witnesses must be in the room when the will is signed, but do not need to know the contents of the will.     

Fiduciary – A person who is entrusted to manage the assets on the behalf of another person (the principal).  The fiduciary duty is to act in the best interest of the person they are acting on behalf of, and is the strictest duty of care recognized by the legal system.

Financial Elder Abuse – Financial elder abuse includes wrongfully taking money or other property away from an elder person for the use of someone other than the elder.  Such abuse is often perpetuated by caregivers, attendants, household employees, and even family members.  Examples of financial elder abuse include making charges on an elder’s credit card for the benefit of someone other than the elder; unduly influencing an elder to transfer his or her home or bank accounts to others; and even unduly influencing an elder to execute an estate plan that benefits the abuser or the abuser's family.

Guardian of the Estate – An adult appointed by the court to make decisions regarding a minor child’s property and finances.  The guardian of the estate has no authority over personal and health care decisions.

Guardian of the Person – Someone appointed by the court to make personal and health care decisions for a minor child, including day-to-day living arrangements, health care, and education.   The guardian of the person has no authority over property and finances.

Guardian of the Person and the Estate – Someone appointed by the court to make personal and health care decisions for a minor child, and also be responsible for the minor’s property and finances. 

Health care agent – A person named in a durable power of attorney for health care or advance health care directive to make health care decisions in the event the person is unable to do so, or is unable to communicate their wishes.  

Heir – A person who inherits or is legally entitled to inherit the property of another following that person’s death.

Holographic will – In California, you may create a valid handwritten will, called a holographic will, provided that you comply with all legal requirements.  To be valid in California, a holographic will must: 1) Be in your own handwriting (i.e., you cannot dictate your will to another person or have someone copy it for you) 2) State that you intend for the document to be your will 3) Clearly state what you are leaving and to whom 4) Be legible 5) Be signed by you

Intestate – If a person dies without a will, they are said to have died intestate.   This is the opposite of having created a will or dying testate.

Irrevocable Trust – A type of trust which can not be changed or revoked after the trust has been signed.  This trust protects assets from lawsuits against the person who created the trust (the settlor).    

Letters of Administration – A document signed by the judge in a probate matter which provides proof of authority for a person to act as personal representative for the estate.  The letters are issued after the hearing for probate and after the order for probate has been signed by the judge.

Limited Conservatorship of the Person – A court proceeding where an adult (called a conservator) is named to care for the daily needs of a developmentally disabled adult.   The conservator has no authority over property and finances.

Limited Conservatorship of the Estate – A court proceeding where an adult (called a conservator) is named to care for the financial matters of a developmentally disabled adult.   If the developmentally disabled adult is receiving public assistance, such as Supplemental Social Security Income (SSI) or Social Security (SSA) and has not other assets or earns a wage, thre is usually no need for a conservatorship of the estate.

Living Trust – A living trust, also called an inter vivos trust, is a legal entity that you create during your lifetime to hold your assets for your benefit while you are alive.  Following your death, your living trust directs distribution of your assets to your beneficiaries.

Living Will – A living will is a legal document with a very narrow purpose:  it allows you to state whether or not you desire to receive life-sustaining treatment if you are terminally ill or permanently unconscious.  Previously, living wills were referred to in California as "Natural Death Act Declarations."  The Advance Health Care Directive is now the legally recognized format for a living will in California.  An Advance Health Care Directive allows you to do more than a living will.  It allows you to state your health care wishes in any situation in which you are unable to make our own decisions, not just when you are terminally ill or permanently unconscious.  In addition, an Advance Health Care Directive allows you to appoint a health care agent to speak for you when you are incapacitated.

LPS Conservatorship – The LPS  Conservatorship gives legal authority to an adult (called a conservator) to make decisions for a mentally ill person, even if the conservatee objects, who is unable to care for themselves.  The powers of the conservator may include the option of placing the conservatee in a locked medical facility, if the treatment is recommended by a psychiatrist.  A LPS Conservatorship is usually filed by the Office of the Public Guardian.  LPS comes from the names of the three California legislators, Lanterman-Petris-Short, who wrote the LPS act in the 1970s.

Minor – A person who is under the age of legal competence, in California that age is 18. 

No Contest Clause – A provision typically found in a will or trust that threatens to disinherit any beneficiary who challenges the terms of the document in court.  However, under new laws in California the law general assumes that the no-contest clause is unenforceable, and provides fewer exceptions, including: challenging the transfer of property alleging that the property did not belong to the transferor; filing of a creditor’s claim or prosecution of an action based on it; and a direct contest brought without probable cause.

Notice – In a probate proceeding, the personal representative is required to give notice that a probate has been opened.  The notice of the petition to administer the estate must be published in a local newspaper of general circulation, and notice of the probate petition is mailed to each interested party.  Proof of such publication is filed with the court.  During the probate process, the personal representative will need to confer with their attorney regarding other actions which require notice to interested parties. 

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

Personal Representative – The personal representative refers to the person appointed by the Superior Court to administer the decedent's estate.  If the decedent died with a Will (referred to as “dying testate”), the person named in the Will as executor is usually appointed as the estate’s personal representative.  If the decedent died without a Will (referred to as “dying intestate”), the Superior Court usually appoints one of the heirs as personal representative.  In the latter case—where there is no Will—the personal representative is called an “administrator.” 

Regardless of whether he or she is an executor, administrator, or administrator C.T.A., the personal representative has the same duty to administer the decedent’s estate in accordance with California law and the direction of the Superior Court.

Petition – A formal application made to the court in writing that requests some judicial action.

Physical elder abuse – Physical elder abuse includes not only the obvious forms of intentional harmful contact—battery, rape, assault with a deadly weapon—but acts that may be the result of negligence.  Examples of negligent acts include failing to provide the elder with adequate food and water; failing to assist with basic personal hygiene; failing to obtain or provide adequate medical care; or even failing to call a doctor when an elder needs medical attention.  Such neglect often results in serious harm to the elder, including bedsores, dehydration, malnutrition, infections, depression, emotional distress, and even death.

POD – Payable on Death – Some bank account, securities accounts, and U.S. Savings Bonds may be held with a beneficiary designation such as "payable on death" (i.e. "POD").  Bank and securities accounts may also carry the designation "In Totten trust For" (i.e., "ITT For") or "Transfer on Death to" (i.e., "TOD").  These assets will pass pursuant to those designations, and not according to the terms of your will, unless the designated beneficiary dies before you die.  If the designated beneficiary predeceases you, your will controls distribution of such assets.

Probate administration – The legal process of marshalling the assets of a decedent estate, paying estate debts and distributing the remaining assets to the person, persons or entities entitled to them.

Probate court – The court which handles matters concerning wills and estates, including the distribution of estate assets to those beneficiaries named in a will, and those probate proceedings with no will.  The probate court in California also handles conservatorships and guardianships. 

Probate Investigator – The court investigator provides a non-biased assessment of the need for a conservator or guardian.  Once a petition is filed with the court to establish a conservatorship or guardianship, the court directs an investigator to interview the proposed conservatee of minor, and file their report with the court.

Probate – See probate administration.

Professional Fiduciary – Professional fiduciaries include individuals and organizations that serve as conservators, typically when no family member or friend is able or available to serve.  Individual professional fiduciaries are often self-employed, independent contractors who make full-time careers of providing conservatorship services.  Banks and non-profit organizations also serve as conservators; however, banks usually limit their involvement to conservatorships of the estate only.

Public Guardian – The court may appoint the Office of the Public Guardian as conservator if the conservator has no family or friends willing or able to help.

PVP - Probate Volunteer Panel – Consists of attorneys who are members of the Probate Volunteer Panel (PVP), who have been appointed by the court to represent, as required by law, for conservatorships and guardianships; proceedings to establish special needs trusts and capacity determinations for adults without conservators.  

Real Property – Fixed property, principally land and buildings.

Regional Centers - Regional centers are nonprofit private corporations that contract with the Department of Developmental Services to provide or coordinate services and supports for individuals with developmental disabilities.

Revocable Trust – Also called a Revocable Living Trust, Living Trust, Inter Vivos Trust, or Family Trust, is a type of trust that can be changed. 

Settlor – Settlor refers to you as creator of your living trust.  As settlor, you specify all of the terms of your living trust, including the appointment of trustee and the names of the beneficiaries who will receive your property after your death.

Statutory fees – Legal fees set by California Probate Code for services to administer a Probate estate.  The fees are awarded to both the attorney and the estate’s personal representative.  The fee is based on the inventories filed with the court and consists of the total fair market value of estate assets.  The attorney and estate’s personal representative may also be awarded Extraordinary Fees for services provided to the estate that are not part of the ordinary tasks of administration, such as the sale of real property.   The Extraordinary Fees must be approved by the probate court. 

Successor Trustee – An individual who assumes the position as trustee of a living trust when the trustee can not longer act in the capacity of trustee through death or incapacitation. 

Surety Bond – A bond, that may be required in probate proceedings, that protects the estate and its beneficiaries from fraud and embezzlement.  If bond is required, the execution of the estate can not continue until a bond is posted with the court.  However, a will may stipulate that an executor may serve without bond.

Testamentary capacity – A person’s legal and mental ability to make or alter a valid will. For the will to be valid, the will’s author must understand (1) that a will is being created; (2) the natural objects of their property; (3) the beneficiaries of the will; and (4) the ability to connect all of these elements together to form a coherent plan.

Testamentary trust - Is a trust, sometimes referred to as a will trust, which arises upon the death of the testator, and which is specified in the will (testamentary trust literally means a trust in a will).  A testamentary trust is irrevocable and can not be changed.

Testate - If you have a valid will, you are said to die testate, meaning you have spelled out your intentions completely and legally.

Testator – This is the person who makes a valid will, or the person who has died who left a valid will.

TOD – Transfer on Death -  SEE POD

Trust - There are many kinds of trusts, but in the context of estate planning, a "trust" most commonly refers to a living trust, also called an inter vivos trust.  A living trust is similar to a Will.  It is a written document that contains instructions regarding how the client wants his assets held during his or her lifetime and distributed after his or her death.  The person who creates a trust is called a settlor or trustor.  The person who manages the trust is called the trustee.  The persons or entities who receive the trust property are called the beneficiaries. 

Trust Contest - A trust contest is a legal proceeding to invalidate, or set aside, a trust instrument.  A trust can be contested on grounds similar to a will contest.  Two common grounds include the settlor’s lack of mental capacity to create the trust document and the settlor being improperly influenced by family members or friends to make trust gifts that he or she would not have otherwise made.  A trust can be contested, even if the trust contains “a no contest clause.”  A no contest clause is intended to penalize a beneficiary for unsuccessfully challenging the trust.  If the contest is successful, the no contest clause is of no effect.

Trustee - Trustee refers to the person who manages your trust.  Usually you name yourself as the trustee of your living trust.  You also name the trustees you wish to serve if you are unable to serve as trustee because of sickness, incapacity, or death. 

The trustee has authority to manage and control the assets held in the trust.  However, the trustee may not use trust property for his or her own benefit.  The law requires the trustee to follow the terms of the trust and to use trust property only for your benefit during your lifetime, and for the benefit of your beneficiaries after your death.  A trustee must account to you while you are alive and account to your beneficiaries after your death.

Undue Influence – Undue influence means taking advantage of another’s weaker state of mind.  A challenge of undue influence means the decedent made the Will because another person improperly persuaded him or her to do so.  But for the improper action of this third party, the person making the Will would not have signed it. 

Ward -  The term is most often applied to a person (usually referred to as guardian) who is responsible for the care and management of someone who is a minor.

Will Contest - Any “interested party” can file a lawsuit to challenge the validity of a Will.  An "interested party," called a "contestant," is someone who would become entitled to receive all or a potion of the estate if the Will were found to be invalid.  The contestant can seek to invalidate the entire Will or just some of its provisions.  California law requires that you cite a specific legal reason to contest the Will; it is not enough to challenge the Will because you do not like the gifts in the Will.  To win a will contest, the contestant must show that the Will was the result of improper execution, lack of capacity, undue influence, or fraud.   

Will - A will is perhaps the most common estate planning document, and the one with which most people are familiar.  A will, sometimes called a "Last will & Testament," is a legal document that directs distribution of your assets to your beneficiaries.  In addition, your will also identifies the Executor you have selected.  The Executor manages and distributes your estate after your death.  In California, the Superior Court usually supervises the Executor through a probate proceeding.  Your will may also name a person to care for your children, if any of your children are still minors at the time of your death.  That person is called a guardian.

Witness - Under California law, a typed will must be signed by the person making the Will (called the "testator") and two witnesses.  Although the witnesses do not need to know the contents of the Will, the witnesses must be in the presence of the testator when the Will is signed or acknowledged.  If a Will is not properly executed, it may not standup to a contest.

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