The Finest Representation in Estate Planning, Trusts/Wills, Probate, Estate Litigation, Contracts, and all Real Estate Matters

Terms To Know & Links


No matter where you are in your search for the law or lawyers here are some helpful terms and ideas to help you make the most of your research time. Scroll down to the term you are interested in.


An instrument that specifies who gets what when you die.  It must go through “probate” in the county court where its creator died.  Generally there are no provisions for any contingency planning after you're gone - it cannot “hold” assets for anyone.  Created (“executed”) by a signature of the "testator" and two "disinterested" witnesses who get nothing from the will.  Each spouse executes their own will.  There is no need to transfer assets anywhere for it to be operative over your estate or property.  In your will you name an “administrator” who is in charge of carrying out the Will's provisions through the probate. 

"Pour-Over Will"  

This is a Will like any other, except it is designed to work with a trust by stating that the trust is the beneficiary of any “stray” assets (ones mistakenly left out of trust).  This ensures that even if an asset is inadvertently left out of the trust it will still ultimately be distributed per the terms of the trust because the pour-over will get it there.  A probate is generally required.  There is, however, a process by which you can ask a court to move a stray asset into trust (without having to rely on the pour-over Will) in situations where it's obvious that a simple mistake was made but that it was supposed to be in trust.

"Pay on Death Beneficiary Designation" 

Think “accounts”, like bank account or life insurance accounts, etc.  This is where you sign a document saying that if you die a specified person gets that asset.  This avoids probate and has priority over your will or trust.  It’s a straight shot to that that beneficiary upon your death … no probate, no will/trust involvement.  Even if the will or trust says “account x to Susan” that account will not go to Susan if the beneficiary designation says it goes to someone else.  Divorce does not automatically revoke these designations, hence, it is not uncommon for an ex-spouse to get all the life insurance money because it was never changed when they divorced.  Distinguish pay on death beneficiary designations from "joint accounts" (below) ... they sometimes function the same but are very different in important ways.  


Anyone who dies without a will and who doesn’t have a trust is "intestate".  Intestacy requires a probate just as having a will does.


An entity like corporation in that it it a separate entity that can own things.  It holds property and distributes it per its terms.  Trusts also allows for a great many contingencies like incapacity, death of any beneficiary, death of a “settlor” or “trustor” (a creator of the trust; one who puts their property in trust).  Trusts hold property; it is very important to “fund” the trust with assets you want the Trust to have control over.  Technically, the trust then is the new owner of that asset.  Any assets not transferred to trust is not controlled by the trust and will likely have to be probated.  See "pour-over" will (above).  


This is the word used to denote anything you own that isn’t in trust.  Technically, if an asset is in trust the trust owns it and you don’t.  Thus, your “estate” necessarily involves only things you own.  If the trust owns it it's not in your "estate".  Your property is your estate whether or not you have a will.  Estates get probated with or without a will.  

"Estate Planning" 

This involves any way in which you provide for the distribution of property upon your passing.  This can be by will, by trust, by pay on death beneficiary designation, by joint tenancy of real property, or any combination of these.  See my Home page for my general approach to such planning.  


The court supervised process by which estates are distributed.  “Estate” applies to any property not in a trust, whether or not you have a will.  Wills get probated just as not having a will gets probated. The only things that avoid probate are assets in a trust, in joint tenancy, or in accounts where you’ve specified a beneficiary in a “pay on death beneficiary designation.”    Only the three classes of assets above automatically skip probate.   Because the court is involved there is a certain level of “safety” that the matter will be concluded fairly and in accordance with law.  This is not the case with a trust administration (below).  

"Joint Tenancy" 

Regarding a co-owned asset, a "joint tenancy" or "joint account" is legal arrangement where at your death your share in an asset passes to the co-owner automatically “by operation of law”.   It requires no probate, and, in that sense, it’s like a pay on death beneficiary designation.  With real property a joint tenancy is created by deed, and with accounts it’s created by specifying as such with the institution holding the asset.  Be very careful about when you change your mind about a joint tenancy – you have every right to change it but the methods of revocation are precise and must be followed if you want to effectively revoke.  Divorce does NOT automatically revoke a joint tenancy!  Distinguish a joint tenancy/account from a "pay on death beneficiary designation" (above). 

"Trust Administration" 

This is the private (no court involvement) process by which the trust assets are distributed.  The overseer of a trust is a “trustee” which is analogous to an “administrator” in a will context.  Trustees are not under any supervisory court process to ensure the trustee is doing things right.  Lots of abuses happen here.  A beneficiary who wants to know the status of a trust may send a letter to the trustee requesting certain information under Probate Code 16067.1. 


This is the word used for the process by which somebody sues somebody else for something.  Depending on whether the case settles early or is dismissed for some reason a trial may not ultimately occur in the matter.  

"Estate Litigation" 

A law-suit involving somebody suing somebody else for something having to do with the distribution of a deceased person's property.  See my Home page for my approach to such matters.   


At the end of the litigation process, if the case has not settled or been dismissed, a trial is held where a court hears the evidence to resolve the dispute.   There are jury trials, and there are “bench” trials (where a judge hears the evidence and makes the decision).


A promise between two or more persons.  Oral contracts are permitted (although not advisable) unless the “statute of frauds” (laws saying what type of agreements must be in writing) indicates that it must be in writing.  However, even oral agreements that fall under the statute of frauds and “must” be in writing can be enforced in many cases involving “equity” on doctrines such as “estoppel”, “equitable estoppel”, “promissory estoppel”, “unjust enrichment”, etc.  Warning: courts and lawyers are generally unreceptive to such remedies for oral agreements probably because it actually requires some contemplation of the facts … it’s just so much easier to assert that “it had to be in writing, but wasn’t, case dismissed.”   See my thoughts Philosophy & Bio page.  

"Real Estate" 

This is a broad class of matters involving such varying things as landlord-tenant, easements, boundaries, rental property, leases, commercial, residential, and contracts.  These are very distinct areas and it is helpful to think of them that way and refer to them as such when researching such matters.   


The process by which you ask a higher court to review the lower court decision.  It is generally not a simple re-hearing of the entire case.  Appeals are usually not successful because lower court decisions are given a substantial benefit of doubt by the reviewing court.  Appellate courts are looking to see if the lower court made a mistake that: (1) is important and would make a difference to the outcome (it cannot be a “harmless” or immaterial error); (2) was properly raised/argued/presented at trial by the person appealing (no new issues/ideas you think of after trial); and (3) is “wrong” even after giving the lower court lots of room to be “a little” wrong, e.g., the appellate court can think the lower court decision was wrong but if it feels the lower court acted reasonably and followed law it will let that “wrong” decision stand.  

"Power of Attorney" 

A power of attorney is a document that names an "agent" or "attorney in fact" to make decisions for you if you cannot due to incapacity.  That power ends at your death.  Thus, while often the same person is appointed as both your agent and your trustee, strictly speaking the authority under the power of attorney ends at your death and from then on that person can only do things allowed under their authority as trustee.  The two roles are different and may have very different scopes of authority.  

"Advance Health Care Directive" 

An Advance Health Care Directive is a document that tells your doctors what decisions you want made with regard to your care and end of life matters, and it names an "agent" to oversee the process to make any needed decisions for you.   

Here are a few websites you may find useful:

Edward B. Batista's Law Blog:
State Bar of California:

Legal Aid and Self Help Resources:
Nevada County Bar Association:

Sacramento County Bar Association:

Yolo County Bar Association:

Sacramento Law Library:

Findlaw research site:

Nolo Press Law Book Retailer (non-lawyer oriented): 

California Appellate Cases and Codes: 

Cornell Legal Resource Online:        

NoodleQuest Search Engine Wizard (research strategies):