Common Probate-Related Terminology

Common Probate Terms

Probate definitions pursuant to § 15-10-201 C.R.S. are as follows:  
 
Administrator: An individual appointed by the court to manage the estate of a person who died without leaving a valid will.
 
Agent: An attorney in fact under a durable or non-durable power of attorney, an individual authorized to make decisions for another under the "Colorado Patient Autonotomy Act".
 
Application: A written request to the registrar for an order of informal probate or appointment under informal probate and appointment proceedings.
 
Augmented estate: An estate reduced by funeral and administration expenses, homestead allowance, family allowances, exemptions, and enforceable claims to which is added value of property transferred to anyone other than bona fide purchaser and value of property owned by surviving spouse at decedent’s death.
 
Authenticated: Means certified, when used in reference to copies of official documents, and only certification by the official having custody is required.
 
Beneficiary: As it relates to a trust beneficiary, includes a person who has any present or future interest, vested or contingent, and also includes the owner of an interest by assignment or other transfer; as it relates to a charitable trust, includes any person entitled to enforce the trust; as it relates to a "beneficiary of a beneficiary designation", includes a beneficiary of an insurance or annuity policy, of an account with payment on death (POD) designation, of a security registered in beneficiary form (TOD), or of a pension, profit sharing, retirement, or similar benefit plan or other non probate transfer at death; and as it related to a beneficiary designated in a governing instrument, includes a grantee of a deed, a devisee, a trust beneficiary, a beneficiary of a beneficiary designation, a donee, appointee, or taker in default of a power of appointment, and a person in whose favor a power of attorney or a power held in any individual, fiduciary or representative capacity is exercised.
 
Beneficiary designation: A governing instrument naming a beneficiary of an insurance or annuity policy, of an account with POD (Payment of Death) designation, of a security registered in the beneficiary form (TOD), or a pension such goods or chattels. , profit sharing, retirement, or similar benefit plan, or other non probate transfer at death.
 
Bequest: A gift by will of personal property.
 
Child: An individual entitled to take as a child under the probate code; by intestate succession from the parent whose relationship is involved and excludes a person who is only a stepchild, a foster child, a grandchild, or any more remote descendant.
 
Claims: Includes liabilities of the decedent or protected person whether arising in contract, in tort, or otherwise, and liabilities of the estate which arise at or after the death of the decedent or after the appointment of a conservator, including funeral expenses and expenses of administration. The term does not include estate or inheritance taxes, or taxes due the state of Colorado, or demands or disputes regarding title of a decedent or protected person to specific assets alleged to be included in the estate.
 
Conservator: A person who is appointed by a court to manage the estate of a protected person.
 
Court: The court or division thereof having jurisdiction in matter relating to the affairs of decedents and protected persons. In Colorado this court is the District Court, except in the city and county of Denver where it is the Probate Court.
 
Descendant: All of the individual’s lineal descendants of all generations, with the relationship of parent and child at each generation being determined by the definitions of child and parent contained in the probate code.
 
Devise: Used as a noun - means a testamentary disposition of real or personal property. Used as a verb - means to dispose of real or personal property by will.
 
Devisee: A person designated in a will to receive a devise. For the purpose of Article 12 - Probate of Wills and Administration, in the case of a devise to an existing trust or trustee, or to a trustee in trust described by will, the trust or trustee is the devisee and the beneficiaries are not devisees.
 
Disability: Cause for a protective order as described in §15-14-401 C.R.S. (protection of property of persons under disability and minors).
 
Distributee: Means any person who has received property of a decedent from his or her personal representative other than as a creditor or purchaser. A testamentary trustee is a distributee only to the extent of distributed assets or increments thereto remaining in his or her hands.
 
Divorce: Includes dissolution of marriage, and "annulment" includes a declaration of invalidity, as such terms are used in the "Uniform Dissolution of Marriage Act in article 10 of title 14 C.R.S.
 
Estate: The property of the decedent, trust, or other person whose affairs are subject to the probate code as originally constituted and as it exists from time to time during administration.
 
Exempt property: Property of a decedent’s estate which is described in §15-11-104 C.R.S.
 
Fiduciary: Includes a personal representative, guardian, conservator, and trustee.
 
Foreign personal representative: A personal representative appointed by another jurisdiction.
 
Formal proceedings: A proceeding conducted before a Judge with notice to interested person.
 
Governing instrument: A deed, will, trust, insurance or annuity policy, multiple party account, security registered in beneficiary form (TOD), pension, profit sharing, retirement or similar benefit plan, instrument creating or exercising a power of appointment or poser of attorney or a donative, appointive, or nominative instrument of any other type.
 
Guardian: A person who has qualified as a guardian of a minor or incapacitated person pursuant to testamentary or court appointment, but excludes one who is merely a guardian ad litem.
 
Heirs: Except as controlled by §15-11-711 C.R.S., means persons, including the surviving spouse, who are entitled under the statutes of intestate succession to the property of a decedent
 
Incapacitated person: Any person who is impaired by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxicating or other cause (except minority) to the extent that he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person.
 
Informal proceedings: Conducted without notice to interested persons by an officer of the court acting as a registrar for probate of a will, appointment of a personal representative, or determination of a guardian.
 
Interested person: Heirs, devisees, children, spouses, creditors, beneficiaries, and any other having a property right in or claim against a trust estate or the estate of a decedent, ward, or protected person, which may be affected by the proceeding. Also includes persons having priority for an appointment as a personal representative and other fiduciaries representing the interested person. The meaning as it relates to particular persons may vary from time to time and shall be determined according to the particular purposes of, and matter involved in any proceedings.
 
Intestate:  A person is said to die intestate when he or she dies without making a will.
 
Issue: Of a person means descendant as defined in intestate successions and wills.
 
Joint tenancy: A form of ownership of real or personal property by two or more persons in which each owns an undivided interest in the whole. The interest of a joint tenant terminates upon their death and the entire tenancy remains to the survivor.
 
Joint tenants with right of survivorship/community property with the right of survivorship: The purposes of this code only includes co-owners of property held under circumstances that entitle one or more to the whole of the property on the death of the other or others, but excludes forms of co-ownership registration in which the underlying ownership of each party is in proportion to that party’s contribution.
 
Lease: Includes an oil, gas or other mineral lease.
 
Letters: Includes: 1. Letters testamentary - The formal instrument of authority and appointment given to an executor by the property court, empowering him to enter upon the discharge of his office as executor. It corresponds to letters of administrations; 2. Letters of guardianship - A commission placing ward’s property in the care of officer of court as custodian; 3. Letters of administration - Formal document issued by probate court appointing one an administrator of an estate.; 4. Letters of Conservatorship - Formal document issued in probate court appointing one to manage the estate of a protected person.
 
Minor: A person who is under eighteen (18) years of age.
 
Mortgage: any conveyance, agreement or arrangement in which the property is used as security.
 
Nonresident decedent: A decedent who was domiciled in another jurisdiction at the time of his or her death.
 
Organization: A corporation, business trust, estate, trust, partnership, joint venture, Limited Liability Company, association, government or governmental subdivision or agency, or any other legal or commercial entity.
 
Parent: Any person entitled to take, or who would be entitled to take if the child died without a will, as a parent under the probate code by intestate succession from the child whose relationship is in question and excludes any person who is only a stepparent, foster parent or grandparent.
 
Payor: A trustee, insurer, business entity, employer, government, government agency or subdivision, or any other person authorized or obligated by law or a governing instrument to make payments.
 
Person: An individual or an organization
 
Personal representative: This includes an executor, administrator, successor personal representative, special administrator, and persons who perform substantially the same function under the law governing their status. "General personal representative" excludes special administrator.
 
Petition: A written request to the court for an order after notice.
 
Proceedings: Includes action at law and suit in equity
 
Property: Means both real and personal property or any interest therein and anything that may be the subject of ownership.
 
Protected person: A person for whom a conservator has been appointed or other protective order has been made.
 
Protective proceedings: A proceeding to determine that a person cannot effectively manage or apply his estate to necessary ends, either because he lacks the ability or is otherwise inconvenienced, or because he is a minor, and to secure administration of his estate by a conservator or other appropriate relief.
 
Registrar: The official of the court designated to perform the functions as provided in and designated by the court by a written order filed and recorded in the office of the court of court and specified by the probate code.
 
Security: Includes any note; stock; treasury stock; bond; debenture; evidence of indebtedness; certificate of interest or participation in an oil, gas, or mining title or lease or in payments out of production under such a title or lease, collateral trust certificate, transferable share, voting trust certificate; or in general, any interest or instrument commonly known as security; any certificate of interest or participation; any temporary or interim certificate, receipt, or certificate of deposit for, or any warrant or right to subscribe to or purchase any of the items enumerated.
 
Settlement: In reference to a decedent’s estate, means the full process of administration, distribution and closing.
 
Special administrator: An appointment to preserve the estate or to secure its proper administration including is administration in circumstances where a general personal representative cannot or should not act - It may appear to the court that an emergency exists.
 
State: Any state of the United States, the District of Columbia, the commonwealth of Puerto Rico and any territory or insular possession subject to the jurisdiction of the United States.
 
Successor personal representative: A personal representative, other than a special administrator who is appointed to succeed a previously appointed personal representative.
 
Successors: Persons other than creditors, who are entitled to property of a decedent under his or her will or this code.
 
Supervised administration: To secure complete administration and settlement of a decedent’s estate under the continuing authority of the Court which extends until entry of an order approving distribution of the estate and discharging the personal representative or other order terminating the proceedings.
 
Survive: An individual than has neither predeceased an event, including the death of another individual, or is deemed to have predeceased an event under §15-11-104, §15-11-702 and §15-11-712 C.R.S. The term includes its derivatives, such as "survives", survived", "survivor", and "surviving".
 
Tenants in common - A form of ownership whereby each tenant or owner holds an undivided interest in property. Unlike joint tenancy, there is no right of survivorship.
 
Testate: One who dies leaving a will.
 
Testacy proceeding: A proceeding to establish a will or determine intestacy.
 
Testator: The person who made the will.
 
Trust: Includes an express trust, private or charitable, with additions thereto, wherever and however created and any amendments to such trusts. "Trust" also includes a trust created or determined by judgment or decree under which the trust is to be administered in the manner of an express trust. "Trust" excludes other constructive trusts and excludes resulting trusts; conservatorships; personal representatives; accounts as defined in section 15-15-201 (1); custodial arrangements pursuant to the "Colorado Uniform Transfers to Minors Act", article 50 of title 11, C.R.S.; business trusts providing for certificates to be issued to beneficiaries; common trust funds; voting trusts; security arrangements; liquidation trusts; trusts for the primary purpose of paying debts, dividends, interest, salaries, wages, profits, pensions, or employee benefits of any kind; and any arrangement under which a person is nominee or escrowee for another.
 
Trustee: Includes an original, additional or successor trustee, whether or not appointed or confirmed by court.
 
Ward: A person for who a guardian has been appointed. A minor ward is a minor whom a guardian has been appointed solely because of minority.
 
Will: Includes any codicil and any testamentary instrument that merely appoints an executor, revokes or revises another will, nominates a guardian, or expressly excludes or limits the right of an individual or class to succeed to property of the decedent passing by intestate succession.
 
*Glossary of additional common legal terms.

 


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