Probate Terms of Art Definitions

The probate court is a division of the local court system that deals with estate and protective matters. Probate courts typically handle wills, trusts, estates, and guardianship and conservatorship cases. The names given to these courts in different states vary. They may be called “Orphan’s Court, “Chancery Court,” or, in New York, “Surrogate’s Court.”

A ward or protected person is a person whom a court has legally placed under the care of another person, called a guardian. A person may become a ward or protected person when the person cannot adequately take care of themselves and their affairs, or if the person is a minor, when their parents are unable or unwilling to care for them.

A person’s estate is everything he or she owns, including real property, personal property, intellectual property, financial assets, and cash. The term “Estate” is used when a person dies, or when a person who is still living is subject to a court proceeding for the appointment of a guardian. The size of the living person’s estate may dictate whether the person is considered a Ward of the state or of a court-appointed commercial guardian.

A trust is a fiduciary relationship where one or more trustees hold and manage asset(s) for the benefit of one or more beneficiaries. A valid trust requires three parties- a grantor, a trustee, and a beneficiary, in addition to the asset(s) (e.g., property) that is/are held in trust. There are many different types of trusts. Trusts can be used to preserve and manage assets during a person’s lifetime and/or after their death. Trusts can be formed for a variety of purposes. The trust will end when its purpose has been achieved (for example, all of the property in the trust has been distributed), or on a date set out in the document creating the trust.

A will is a legal document that states how a person wants his or her assets distributed after he or she dies. Without a will, default probate laws determine how a person’s assets will be distributed after their death. There are some limitations to what property can be allocated through a will. For example, a will cannot transfer assets that are jointly owned with another person. Each state has different rules for determining whether a will is valid and enforceable.

An heir is a person who is legally entitled to inherit money or other assets when another person dies without a will. In most situations, heirs are family members.

 

The term “heir” is used very differently in ordinary conversation. In everyday conversation, it means someone who is named in a will to inherit or someone who ought to be in line to inherit, as a matter of law, even if there is no will. You may hear the term used this way, even in conversations with an attorney. However, the precise legal meaning is used mostly in official court documents.

A guardian is a person or business entity appointed by the court to manage the life affairs of someone the court considers unable to do this independently. Some states, like Florida, call the person/entity who manages another person’s financial affairs “guardian of the estate.”

A conservator is an individual or entity appointed by a court to manage the estate, property, or other business affairs of an individual whom the court has determined cannot to do so for him or herself. In some cases, a conservator is just a different name for a guardian, as different states use different terminology.

An emergency guardianship/conservatorship is an appointment of a guardian to avoid immediate, extreme harm to a person. This type of guardianship is temporary. State laws usually set maximum terms for emergency guardianships. Following the emergency guardianship, a permanent guardian may be appointed, or if the person regains capacity, the person regains full and complete control of his or her affairs.

A private guardianship is created when a private organization or individual, such as a friend or family member, or a commercial guardian, is appointed as a ward’s guardian. A public guardianship is when a public organization or agency is appointed to serve as a ward’s guardian. In other words, the state takes over responsibility for the ward. In most states, private guardianships are preferred, and public guardianships are reserved for very low-income individuals with no other options.

A fiduciary is a person or entity who owes another person, called a beneficiary, a duty to act in that person’s best interests rather than the fiduciary’s own interests. Fiduciaries owe beneficiaries duties of care, loyalty, good faith, prudence, confidentiality (not telling third parties the beneficiary’s private information), and disclosure (sharing information with the beneficiary). Common examples of fiduciaries are attorneys, guardians, financial advisors, trustees, and insurance agents.

A power of attorney is a legally enforceable document that grants another person the right to act on someone else’s behalf. There are different types of powers of attorney. A power of attorney can grant the person the right to manage someone’s finances, property, and/or medical care. It can become immediately effective or only become effective when the person becomes incapacitated.

A mediator is a third-party (i.e., someone not involved in your legal case or dispute) who attempts to help those involved in the dispute reach a resolution through the process of mediation. A mediator generally helps cool the emotional temperatures of disputes by serving as a level-headed intermediary between the parties. The mediator may make suggestions, but the parties retain the full authority to make decisions regarding the case.

 

While probate matters are sometimes referred to mediation, it is less common for them to be referred to arbitration. In arbitration, the facts of the case are submitted to a neutral party (the arbitrator). The arbitrator makes a decision, rather than encouraging settlement.

An interested party is a person or business entity that has a stake in the outcome of a legal proceeding. For example, in the case of a contested will, everyone named in the will is an interested party because the outcome of the proceedings will impact them.

A signatory is a person who has signed (or “executed”) a document.

A petition is a formal legal document that requests that a court take some action. It is usually the formal start of legal proceedings related to the request. For example, guardianship cases begin when someone files a Petition for Appointment of a Guardian that requests that the court appoint a guardian.

Negligence is the failure to act as a reasonable and prudent person or entity would under the same circumstances. Put differently, it occurs when a person or entity doesn’t exercise the level of care that a reasonable, conscientious person would in a scenario. Negligence can occur through actions, such as throwing a heavy object out of a window onto a busy street, or through inactions, such as a physician failing to treat a patient’s infection.

 

If a person has been harmed due to someone else’s negligence, he or she may have legal remedies against the person who harmed him or her.

Fraud occurs when one person or entity intentionally uses deception to get another person to act to their detriment. Fraud can occur in many different ways. For example, fraud occurs when a person lies to an incapacitated person to get them to sign a document that is not in that person’s best interests or to cancel existing wills or powers of attorney when a person does not understand what he or she is doing.

Applicable fees are the costs associated with a legal case other than attorneys’ fees. Most legal cases require fees for filing certain documents with the court as well as for other things necessary to advance a case such as professional examinations.

A court bond, or surety bond, is a court-required written agreement in which a surety, usually a company, promises to pay one party if another party fails to fulfill its obligations. Bonds are used for many different purposes, including ensuring that a guardian or conservator fulfills their duties. Surety bonds are different from financial bonds that are purchased as investments.

Incapacity is the inability of a person to care for their own health and basic needs or manage their own financial affairs. Minors are considered incapacitated. Adults may be deemed incapacitated by a court if they cannot care for themselves due to illness, infirmity, or other reasons. When a person is incapacitated, someone else must be granted the legal right to manage the incapacitated person’s affairs on their behalf. Legal incapacity can be temporary or permanent. The facts that would make a court conclude that a person is unable to manage his or her own affairs will vary from state-to-state, and may even vary between courts in one state.

A physician’s statement is a statement by a physician in a guardianship case, generally provided in writing or on a form. In it, a physician who has recently seen the person who is or may become a ward shares information about the person’s health status and states whether the physician thinks guardship is warranted. A physicians’ statement helps a court get a complete picture of an individual and decide whether guardianship is appropriate and, if it is, what an appropriate guardianship plan is.

A less restrictive alternative is an option for a course of action that places fewer restrictions on the person being restricted. Put differently, it’s a less severe alternative. In guardianship cases, a guardian generally cannot be given a power if there is a less restrictive alternative. The goal is for the ward or protected person to be as self-reliant and involved in the decisions impacting them as is safely possible. In cases where the medical prognosis is for increasing incapacity—as in Alzheimer’s dementia—it is advisable to require periodic re-examinations to ensure that the incapacitated person still maintains enough capacity to remain in a less restrictive personal arrangement.

A case filing information sheet is a form that is filled out when filing a case. It contains basic information about the case and the person filing it. Forms may have different names in different states.

Statutes of limitations are laws providing the deadlines for filing legal actions, such as a lawsuit. Statutes of limitations vary from state to state and depending on the type of legal claim and what law applies. For example, the statute of limitations for filing a negligence claim in New York is different from the statute of limitations for filing a medical malpractice claim in California.

A gag order is an order issued by a judge that limits what participants in the case can disclose or discuss about the case, or prohibits participants and/or the media from discussing the case in public or publicizing aspects of the case. The main and legitimate purpose of gag orders is to ensure a fair judicial process. For example, they may be issued to ensure fair trial by preventing jury pools from being prejudiced before hearing a case or to protect the identity of a minor child.

In guardianship or conservatorship cases, it is common for a gag order to last in perpetuity. Guardians have often obtained gag orders against family members of the ward to prevent them from speaking with certain people, to prevent them from speaking with elected officials about the case, or to prevent them from speaking or writing about the case in the media. Courts must balance the need to protect the judicial process with the chilling effect of a gag order on rights protected under the First Amendment.

A bench warrant is a warrant for a person’s arrest issued by a judge when a person violates a court rule. Common reasons for bench warrants include failure to show up to court when required, failure to pay a court-ordered fine, violating gag orders, probation violations, and failure to pay child custody fees.

Freedom of association is the right of people to join together freely, or “associate,” for a joint purpose such as promoting a political or social viewpoint. With some exceptions, it allows individuals to join groups, groups to pursue joint interests, and groups to decide who to permit to be members. Freedom of association is protected by the First Amendment of the US Constitution. Gag orders in adult guardianship cases are often in direct conflict with these rights. The usual justification given is that the guardian is protecting the ward’s rights by silencing perhaps a dozen other people, mainly at the whim of the guardian. Gag orders are often issued in guardianship cases when no legal action, other than the guardianship itself, is pending. Overly broad gag orders violate the US constitution and state constitutions, but are often not challenged by those impacted.

Last Updated May 2022

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