Probate Definitions

Oftentimes lawyers use legal words with their clients in order to justify their fees. Other times lawyers use legal words with their clients because the word or words sum up what is trying to be explained. Below are definitions to some of the legal words used on this site or in matters involving trusts and wills. When you see a word you don’t understand or if we use a word you don’t understand, ask us and we will be happy to explain the legal term or concept.

Administrator

The person appointed by the court to handle the estate of someone who died without a will, with a will that does not nominate an executor [administrator with will annexed], or if the executor named in the will has died, has been removed from the case or does not desire to serve and no replacement is nominated.

Advance Health Care Directive

Formerly called “a durable power of attorney for health care,” is a document authorized by California law in which you may appoint someone as your representative to make health care decisions if you become too ill to make your own health care decisions. In most states the basic language has been developed by medical associations or other experts and may provide various choices as to when such maintenance of life can be terminated. The decision must be made in consultation with the patient’s doctor. This directive permits a terminally ill patient to die with dignity and protects the physician or hospital from liability for withdrawing or limiting life support.

Beneficiary

A broad definition for any person or entity (like a charity) who is to receive assets or profits from an estate, a trust, an insurance policy, or any instrument in which there is to be distribution.

Charitable Remainder Trust

A form of trust in which the donor (trustor or settlor) places funds or assets into an irrevocable trust (a trust in which the basic terms cannot be changed or the gift withdrawn) with an independent trustee, in which the assets are to go to charity on the death of the donor, but the donor (or specific beneficiaries) will receive regular profits from the trust during the donor’s lifetime. Charitable lead trusts are similar, except the charity receives the income during the donor’s lifetime but not the remainder after the death of the individual.

Conservatee

A person whom a court has determined because of physical or mental limitations or old age requires a conservator to handle his/her financial affairs, and/or his/her actual personal activities such as arranging a residence, health care and the like.

Conservator

A guardian and protector appointed by a judge to protect and manage the financial affairs and/or the person’s daily life due to physical or mental limitations or old age. The conservator may be authorized to protect and manage the “estate” (meaning financial affairs) or the conservator also be authorized to protect and manage the “person,” when he/she takes charge of overseeing the daily activities, such as health care or living arrangements of the conservatee.

Conservatorship

A proceeding where a Court appoints someone (a conservator) to care of someone (a conservatee) who is unable to take care of their daily affairs or their finances or both their daily affairs and finances.

Co-Trustee

A trustee of a trust when there is more than one trustee serving at the same time, usually with the same powers and obligations. Occasionally a co-trustee may be a temporary fill-in, as when the original trustee is ill but recovers. The co-trustee must act in consultation with the other trustee(s), unless the language of the trust allows one co-trustee to act alone.

Decedent

The person who has died, sometimes referred to as the “deceased.”

Estate

This term may refer to all the possessions of someone who has died and that may be subject to probate (administration supervised by the court) prior to being distributed to heirs and beneficiaries. This term may also refer to all the possessions that a guardian manages for a ward (young person requiring protection and administration of affairs). This term may also refer to the assets of a revocable or irrevocable trust or assets that a conservator manages for a conservatee.

Irrevocable Trust

A trust that cannot be amended or revoked by the trustor after it is created. This kind of trust is used for special purposes. One example is to own life insurance policies and keep the proceeds out of your estate upon your death.

Pet Trust

A legally permitted arrangement that allows for the care and maintenance of one or more pets in the event of a settlor’s disability and/or death.

Pour-Over Will

A pour-over will is a protection which is intended to guarantee that any assets which somehow were not included in the trust become assets of the trust upon the party’s death.

Power of Attorney

A written document signed by a person giving another person the power to act in conducting the signer’s business, including signing papers, checks, title documents, contracts, handling bank accounts and other activities in the name of the person granting the power. California has Durable Powers of Attorney which allow someone to continue acting on your behalf even if you become disabled.

Probate

A general term for the entire process of administration of estates of dead persons, including those without wills, with court supervision.

Revocable Trust, Living Trust, or Inter Vivos Trust

These are all names for the same thing a trust created by a writing (declaration of trust) which commences at that time, while the creator (called a trustor or settlor) is alive, sometimes called a “living trust.” The property is then placed in trust with a trustee (often the trustor during his/her lifetime) and distribution will take place according to the terms of the trust-possibly both during the trustor’s lifetime and then upon the trustor’s death.

Settlor

The person who creates a trust by a written trust declaration. The Settlor is also sometimes called the “trustor” in estate planning documents

Special Needs Trust

A trust in which property is held for the benefit of a child or adult who has a disability. The Trust can be used to provide for the needs of a disabled person to supplement benefits received from various governmental assistance programs without disqualifying them from receiving the government benefits. A Special Needs Trust can be prepared as part of an estate plan and also by court order in certain circumstances.

Testamentary Trust

This type of trust is a trust that is created by the terms of a will.

Trust

An entity created to hold assets for the benefit of certain persons or entities, with a trustee managing the trust (and often holding title on behalf of the creator of the trust. A married couple typically has one trust for them both).

Trustee

A person or entity who holds the assets (corpus) of a trustee for the benefit of the beneficiaries and manages the trust and its assets under the terms of the trust stated in the declaration of trust which created it. In many “living trusts” the creator of the trust (trustor or a settlor) names himself/herself (or themselves) as the original trustee who will manage the trust until his/her death when it is taken over by a successor trustee.

Trustor

The creator of a trust who normally places the original assets into the trust. Also called “settlor.”

Will

A written document which leaves the estate or property of the person who signed the will to named persons or entities.