Probate and Conservatorship
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.
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.
Once you are appointed conservator, you are legally responsible to provide care for the conservatee’s daily needs. Conservatorships are processed in the probate department located on the 1st floor of the Justice Center Courthouse.
There are several types of conservatorships, the most common of which are:
|General Probate Conservatorship||
For adults who cannot provide for their own personal needs due to physical injury, dementia, or other reasons that make them incapable of caring for themselves or making them subject to undue influence.
Only for a person who is developmentally disabled. The powers are limited so the person may live as independently as possible.
If you are Conservator of the Person, this means you:
Arrange for the conservatee’s care and protection;
Decide where the conservatee will live; and
Are in charge of health care, food, clothes, personal care, housekeeping, transportation, and recreation on behalf of the conservatee.
If you are the Conservator of the Estate, this means you:
Manage all the conservatee’s finances;
Protect the conservatee’s income and property;
Make an inventory of everything in the estate;
Make a plan to make sure the conservatee’s needs are met;
Make sure the conservatee’s bills are paid;
Make sure the taxes are filed and paid on time;
Keep exact financial records;
Make regular reports of the financial accounts to the court and other interested persons.
You can request to become a temporary conservator when a person needs immediate help (emergency situations only), but you must file the petition for appointment of probate conservator (permanent orders), simultaneously. If appointed by the court, you will have most of the same duties and powers that a permanent conservator has. A temporary conservator will last for a specific time period, until you or someone else can be appointed as the permanent conservator.
Forms to begin a Conservatorship
The forms required to obtain an appointment as a conservator are listed below. You can view/download them here. You may also find it helpful to download the Conservatorship Handbook, which contains a lot of useful information. A packet containing the necessary forms is available for purchase at the probate division of the Superior Court of California, County of Tuolumne.
Petition for Appointment of Probate Conservator
Attachment Re: Special Orders Regarding Dementia
Capacity Declaration (Must be completed prior to court hearing.)
Confidential Supplemental Information
Confidential Conservator Screening Form
Declaration Re: Conservatorship Trust Accounts
Probate Investigators Referral Report
Probate Investigators Referral Report
Duties of Conservator
Citation for Conservatorship and Proof of Service
Order Appointing Probate Conservator
Letters of Conservatorship
Notice of Hearing
Where can I get help?
Being a conservator can be a confusing and overwhelming process. You may need legal advice that can only be provided by an attorney. You can also find information regarding conservatorships by visiting the California Courts website, as well as:
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,
- clothes, personal care,
- housekeeping, 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.