Probate Glossary

Here are brief definitions of terms you may encounter if you are dealing with probate or trust real estate or inheritance property

Administrator: A person or entity appointed by the court to administer the estate when no will exists

Administrator with Will Annexed: An Administrator appointed by the court to act on behalf of the estate of a deceased person who left a will, but where no named Executor is either willing or able to act in that capacity

Affidavit: A written statement made under penalty of perjury and requiring notarization

Ancillary Administration: Administration of a decedent’s property located in a state other than the decedent’s permanent residence

Beneficiary: A person who inherits when a will exists

Codicil: An addition to a will that may modify, add to, subtract from, revoke or qualify provisions found in the will.  It is signed with the same formality as the will

Conservator: A person the court has appointed to have the fiduciary responsibility for an adult

Conservatee: A person whose care and best interest are provided for under a conservatorship

Conservatorship: A court action in which a judge appoints a responsible person (the Conservator) to take care of another who cannot handle their finances (Conservatee)

Custodian of the Will: The person in possession of the will when the person who wrote the will dies.

Decedent: The person who has died

Declaration: A written statement made under penalty of perjury

Devisee: A person who receives a gift of real property by a will

Estate Taxes: The taxes imposed by the federal government on the transfer of assets upon death

Ex Parte: By, or for, one side only.  A situation in which only one party (without the adversary present) appears before a judge

Executor: The person, or company, named in the will to execute the will

Fiduciary: A person charged with a high degree of care who acts on behalf of another.  Executors and trustees are fiduciaries

Guardian: The individual, or corporation, who has legal charge of the care and management of the person and/or property of a minor

Heir: A person entitled to inherit another’s property

Inheritance Tax: The taxes imposed on an heir based on their relationship to the decedent

Inheritance Tax Referee: A person that evaluates the assets of the deceased or estate (probate inventory)

Intestate: The terminology used when a person dies without leaving a will

Intestate Succession: The order of who inherits the decedent’s property when
that decedent died intestate (leaving no will)

Irrevocable Trust: A trust whose terms and provisions may not be changed or revoked

Legatees, or Devisees: People who are named in a will.

Letters of Administration: An order received from the Probate Court that gives the Administrator of an estate the legal authority to locate, manage, spend, distribute and sell the assets of an estate.

Letters Testamentary: An order received from the Probate Court that gives the Executor of an estate the legal authority to locate, manage, spend, distribute and sell the assets of an estate.

Life Estate: An interest in property, the term of which is measured by the life of its owner

Notice of Proposed Action: A Notice of Proposed Action is used when action is taken without court supervision.  A Notice of Proposed Action must contain a description of the proposed action in reasonably specific terms, and when dealing with real estate must include sales price and commission payable

Order for Probate : Court appointment or confirmation of the personal representative (Executor, Administrator, etc.)

Personal Representative: The Executor or Administrator

Pretermitted Heir: One who would normally be a beneficiary of the decedent but who is not mentioned in the will

Probate: When used as a noun Probate refers to the assets of the decedent.  When used as a verb it means deciding how to distribute the decedent’s assets (real property)

Probate Administrator: Entity, or person, designated by the State to act when the decedents died intestate and without living relatives

Probate real estate sale: The transfer of legal title (ownership) of real property from the estate of the person who has died to his or her beneficiaries or to a buyer under the supervision of the Court.

Probate referee: Before real property can be sold through probate, it must be appraised. This is done by a probate referee. In California, probate referees are appointed by the State Controller and assigned to a particular case by the court clerk. They are paid for this service directly by the estate, usually a percentage of the appraised value.

Real Estate (also Real Property): An interest in land or property affixed to the land

Residue: The remaining part of a decedent’s estate after the payments of debts and legacies.  Also referred to as the “residuary estate”

Residuary Beneficiary: One who receives all or part of the residue when distributed

Revocable Trust: A trust whose terms and provisions can be changed, modified, amended, or revoked

Testate: Designation when a decedent dies leaving a will

Testator: The person (testatrix can be used as the female term) who signs the will that disposes of his/her property

Trotten Trust: A form of revocable trust, usually a bank account that allows for the distribution to the beneficiary upon the death of the trustee without the need for probate of the asset

Trust: A legal title to property held by one party (Trustee) for the benefit of another party (Beneficiary)

Trustor: The person, or persons, who establish a trust

Vacating Sale: The action taken when the buyer does not complete the transaction in a court confirmed sale

Will: The document left by the decedent outlining their wishes for the disbursement of their personal and real property

View frequently asked questions about the sale of real property through probate or view additional resources for probate sellers.

Tuscana Properties is always happy to answer your questions about language, procedures, disclosures and any other aspect of probate and trust real estate. Call us at 408-802-4017 or 888-584-2084.

Sandy Jamison on Zillow

My San Jose real estate listings