Probate and Conservatorship
Probate is the court supervised process of identifying and gathering a person's assets after their death, paying all of their debts, and distributing the balance to the rightful heirs or beneficiaries. If an estate exceeds $100,000.00, and if the assets are in the name of the deceased person only, a probate will generally be required.
A conservatorship can be set up after a judge decides that an adult person (called the "conservatee") can't take care of themselves or their finances. Then the judge chooses another person or organization (called the "conservator") to be in charge of the conservatee's care or finances, or both.
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There are many situations where an estate does not require probate, including estates under $100,000.00, estates in trust, and those cases where all of the estate passes to a surviving spouse. Even when probate is not required, however, some sort of legal process is often necessary. This is especially true when an estate owns an interest in real property. Legal counsel is recommended if you have any questions regarding estate matters.
Not always. If you have the legal right to inherit personal property, like money in a bank account or stocks, the entire estate is worth $100,000 or less, and there is no real property (land) in the estate you may not have to go to court. There is a simplified process that can sometimes be used to transfer the property to your name. This process generally cannot be used for real property like a house. The Affidavit Procedure for Collection or Transfer of Personal Property can be found in the Probate Code under Section §13100. Check with a qualified probate attorney as to whether this procedure is appropriate.
The Court also hears disputes pertaining to living and testamentary trusts. The person(s) charged with administering the trust, called "trustees" are required to distribute assets as described in the trust instrument. The individuals who will benefit from the trust are called "beneficiaries."
Trustees, or beneficiaries, of the trust may petition the Court to remove the trustee, release assets held by the trustee, amend the trust instrument, appoint successor trustees, appoint receivers, notify creditors, and make other orders necessary to ensure the timely and appropriate distribution of the trust's assets. Check with a qualified attorney if you have questions or need advice on petitioning the court in a trust case.
The duties of a conservator can include:
- Arranging for the conservatee's care and protection;
- Deciding where the conservatee will live;
- Making decisions about:
- health care,
- personal care,
- transportation, and
- Managing the conservatee's finances;
- Protecting the conservatee's income and property;
- Making sure the conservatee's bills are paid and taxes are filed and paid on time;
- Investing the conservatee's money;
- Making sure the conservatee gets all the benefits he or she is eligible for;
- Keeping exact financial records; and
- Making regular reports of the financial accounts to the court and other interested persons.
A conservatee does not lose all rights. They can still have a say in important decisions. They have the right to:
- Be treated with understanding and respect;
- Have their wishes considered; and
- Be well cared for.
In general, conservatees keep the right to:
- Control their own salary;
- Make or change their will;
- Get married;
- Get mail;
- Have a lawyer;
- Ask a judge to change conservators or end the conservatorship;
- Vote, unless a judge says they're not able to;
- Control personal spending money if a judge says they can have an allowance; and
- Make their own health-care decisions, unless a judge gives that right to a conservator.