Probate
Probate is the process of transferring the assets of a deceased individual to his or her beneficiaries. A formal court-supervised probate is not always necessary. If the deceased individual owned assets as joint tenancy with someone else, or as community property with their spouse, or in a trust, then these assets will not have to go through probate. Depending on the value of the assets that cannot be passed through the above means, one is left with two choices:
(1) a formal court-supervised proceeding: A formal court probate usually takes one to two years in Los Angeles County. It may take less in other, less populated counties. However, if the value of the assets is under the threshold (currently $166,250) these assets can be transferred by a simple sworn statement.
(2) an informal transfer of property via an affidavit.
The probate process differs depending on whether the deceased left a will or not:
| With Will | Without will |
| The deceased’s assets are to be distributed to their beneficiaries according to the terms of the will. | The assets are to be distributed according to the terms of California’s intestate statutes (that is the legislators in Sacramento have decided for you who is to receive what). |
| The person in charge of the process is referred to as the executor. The executor is usually named in the will. | A family member would request that the Court appoint them as the administrator of the estate. |
In both cases the job of the executor and administrator is more or less the same. It will vary with the complexity of the assets but will go through the same steps:
- First, they will seek permission from the Court to act as such.
- Once permission is granted in the form of Letters of Administration the executor-administrator will inventory the deceased person’s assets and debts.
- A probate referee will be appointed from a list of pre-approved qualified referees, and the assets will be appraised.
In Los Angeles County a bond is usually set but may be waived under the right circumstances. Real property assets may need to be sold. That sometimes requires the Court’s approval. Creditors of the deceased must be given notice and may file claims. If the estate is insolvent the law prescribes the manner and order in which debts are to be paid.
Attorney’s fees in uncontested probate cases are set by statute as a percentage of the assets that are being transferred and are paid out of the estate at the end of the process. They are 4% of the first $100,000, plus 3% of the next $100,000 (if any), plus 2% of the next $800,000 (if any), etc.
Conservatorship
Conservatorship is the process of applying for and having the Court appoint a responsible adult to act as a conservator (or manager) of the affairs of another adult. This may be necessitated by old age, onset of dementia, various mental or physical limitations. Many callers and potential clients believe that a Power of Attorney is the same as a Conservatorship, but it is not. A conservatorship is much more comprehensive and powerful.
There are three types of conservatorships in California:
(1) General: Often used to care for an elderly person with diminished mental or physical capacities
(2) Limited: Usually set up for persons with developmental disabilities
(3) Lanterman-Petris-Short (LPS): Usually set up for persons suffering from a severe mental illness.
Guardianship
In California, a Guardian is appointed for the needs of a minor, while a conservator is appointed for the needs of an adult. Guardianships and conservatorships serve the same purpose allowing another person to step in and take over the management of all or some financial and or medical decisions. It is possible for a guardian to be appointed as conservator when the child reaches the age of majority.
Probate guardianship cases are brought by the person seeking to be appointed guardian or by someone else in the family asking the court to appoint a guardian. This is necessitated because a child is residing with an adult who is not the child’s parent and the adult needs a court order to make decisions on behalf of the child.
There are different rules when a minor was awarded to a non-parent through a juvenile dependency court proceeding. Similarly, if Child Protective Services (CPS) is involved in your case your matter will not be heard in a probate court. In Los Angeles County all juvenile dependency matters are heard at the Edmund D. Edelman Children’s Court located in Monterey Park, CA. I cases of immigrant youth who are seeking special immigrant juvenile status, the law allows a guardianship of the person to be requested (or extended) for a young person who is already 18 but still under age 21.
Guardianship ≠ Adoption!
| Guardianship | Adoption |
| the child’s parents still retain their parental rights and may seek reasonable contact with the minor. If the parents become able to care for their child, the Court may end a guardianship and return total control of the minor to its parents. | the parents’ rights are permanently ended. The legal relationship with the adoptive family is permanent and the adoptive parents have the same rights as if they were biological parents. An adoptive child inherits from his or her adoptive parents, just as a birth child would. |
| Guardians can be supervised by the Court. | Adoptive families are not supervised by the Court. |
There are two types of probate :
(1) guardianship of the person: the guardian has the rights of a parent
(2) guardianship of the estate: the guardian’s job is to manage the child’s assets until the child ages out.
Examples of parents who are unable to parent effectively are parents who have serious physical or mental illness, a military service member who must deploy overseas, a parent who is incarcerated or has a drug or alcohol addiction or has a violent nature and a history of abuse.
Contested Cases
- Sometimes the relatives of the deceased disagree about who ought to receive how much from the estate.
- Sometimes the children disagree over who ought to be the conservator for Mom or Dad.
- Sometimes the children file competing applications for conservatorship.
In such cases there are often allegations of financial abuse and mismanagement of funds, physical abuse, elder abuse, etc. In the worst of cases there are simultaneous criminal investigations and complaints.
