Probate Terms and Definitions

As a personal representative of an estate, it is essential to understand probate terms and their definitions. Probate has many procedures and regulations that can affect a real estate transaction. Without a complete understanding of these terms & definitions, probate can easily cause confusion and loss of valuable time.

The basic probate terms and definitions provided below are intended to promote a better understanding of probate and the individual roles of those typically involved. It does not reflect the whole, complex landscape of actual probate procedure. To gain a greater understanding of managing, buying, or selling probate real estate, seek experts in the field. I stand ready to provide solutions to any probate challenge.

BENEFICIARY

A person who inherits when there is a Will

BOND

A form of insurance that protects the assets of the estate.

CONSERVATOR

A person who has the court-appointed fiduciary responsibility for the care of another adult

CONSERVATEE

The person whose care is provided for under a conservatorship

CONSERVATORSHIP

A court proceeding wherein a judge appoints a responsible person (Conservator) to care for another person (Conservatee) who cannot care for him/her self or finances

CREDITOR CLAIM

DECEDENT

A person who has died

ENCUMBRANCE

Any claim or restriction on a property’s title.

ESTATE

All the money and property owned by a person at the time of death.

EXECUTOR

A person named in a Will and appointed by the Court to carry out the decedent’s wishes. This person is also the seller of the real property

FIDUCIARY

A person or entity who holds assets for another.

HEIR

A person who inherits

INTESTATE

A person who has died without having made a will. When there is no Will, the sale of the decedent’s real property often requires court confirmation.

INTESTATE SUCCESSION

The order of who inherits the property when the decedent does not have a Will

LETTERS OF TESTAMENTARY

A document issued by the court granting authority to handle the affairs of a testate estate.

PERSONAL REPRESENTATIVE (ADMINISTRATOR OR EXECUTOR)

The person responsible for overseeing the management and distribution of the estate

PETITION

A formal application made to a court in writing that requests action on a certain matter. To begin the probate process, a petition must be filed with the court.

PROBATE

The formal court process to appoint a representative and marshal, as well as appraise assets and distribute the decedent’s estate to the proper parties

PROBATE REAL ESTATE SALE

The transfer of legal title (ownership) of real property from the estate of the person who has died 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 PROPERTY

The term used to refer to real estate (land and buildings) in probate and trust sales

TESTATE

Having made a valid will before one dies

TRUST

In real estate in the United States, a deed of trust or trust deed is a deed wherein legal title in real property is transferred to a trustee, which holds it as security for a loan (debt) between a borrower and lender. The equitable title remains with the borrower

WILL

A legal document in which a person gives instructions for the distribution of his or her assets upon death.