Probate

PROBATE

The Probate Court handles decedents' estates, guardianship of minors, and conservatorship of adults who are unable to provide for their personal needs or manage their financial resources.

CONSERVATORSHIP

A conservatorship is a court case in which a judge appoints a family member, friend or other responsible person (called a conservator) to care for another adult who cannot care for him or herself (called a conservatee). Once you are appointed conservator, you are legally responsible to provide care for the conservatee’s daily needs.

 

There are three types of conservatorship actions:

 

General Probate Conservatorship is for adults who are unable to provide for their personal needs due to physical injury, dementia or other reasons rendering them incapable of caring for themselves or making them subject to undue influence.

 

Limited Conservatorship is only for a person who is developmentally disabled. In this type of conservatorship the powers of the conservator are limited so that the disabled person may live as independently as possible.

 

LPS (Lanternman-Petris-Short) Conservatorship (W&I 5350-5371) is for a gravely disabled person who may be a danger to themselves or others and requires hospitalization in a psychiatric facility. An LPS conservatorship requires the annual reappointment of the conservator. A person under an LPS conservatorship may be placed in a locked facility. There are many extra protections in LPS conservatorships to insure that the conservatee's civil rights are not being violated.

GUARDIANSHIP

A guardianship is a court case in which a person who is not the parent of a child asks for custody of the child, the power to manage the child’s property, or both.

 

There are two types of guardianships:

 

Juvenile Dependency: In these cases, a child has been removed from the home by a Child Protective Services social worker because there is information that the child is being neglected, abused, or is in danger. If the child is a dependent or ward of the juvenile court, guardianship must be decided in Juvenile Court.

 

Probate Court: In these guardianships, the child lives with the person who is the guardian.

 

In addition to guardianship of the child there is the issue of guardianship of the estate. A guardian of the estate manages a child’s income, money, or other property until the child turns 18. A child may need a guardian of the estate if s/he inherits money or assets.

 

Before a guardian can be appointed, the court will conduct an investigation to determine whether appointment of the guardian will be in the best interests of the child. The investigator may interview the child, the proposed guardian, and review the background and history of the proposed guardian. A confidential report will be prepared for the court to consider in evaluating whether to appoint the proposed guardian to care for the minor.

WILLS, TRUSTS, ESTATES

In a probate case, an executor (if there is a will) or an administrator (if there is no will) is appointed by the court as personal representative to collect the assets, pay the debts and expenses, and then distribute the remainder of the estate to the beneficiaries (those who have the legal right to inherit), all under the supervision of the court. The entire case can take between 9 months to 1 ½ years, maybe even longer.

 

If you have the legal right to inherit personal property, like money in a bank account or stocks, and the estate is worth $150,000 or less, you may NOT have to go to court. There is a simplified process you can use to transfer the property to your name.

 

You may be able to use a form called Petition to Determine Succession to Real Property (Estates $150,000 or Less) (Form DE-310).  You will have to file the Petition with the court, obtain and file an Inventory and Appraisal (Form DE-160), and provide notice of hearing.  Talk to a lawyer to make sure you can use this simplified process in your case.