CALIFORNIA PROBATE

Probate refers to the court proceedings through which a deceased person's property is transferred to his or her beneficiaries. If a decedent dies with a Will, that Will is presented to the court. Generally, the court directs the distribution of property as expressed in the Will after bills, taxes and expenses are paid. If a decedent dies without a Will but with property that needs to be distributed, the decedent is said to have died intestate and distribution of the property is dictated by the laws of intestacy found in the California Probate Code.

NOTE:
The rules of intestacy may provide for distribution very different from what the decedent would want or expect.

NOTE:
Another critically important reason to create a Will is to nominate guardians for minor children should the parents die before they reach majority.

The first step in a probate proceeding is appointment of a personal representative of the estate. This is typically the person named as executor in the decedent's Will. If the deceased didn't leave a Will, the personal representative is referred to as the administrator. Once appointed to serve and after letters testamentary or letters of administration are issued by the court, the personal representative begins the process of collecting the deceased's property and paying debts and taxes.

When the personal representative is ready to be discharged from his or her duties, a final accounting must be presented to the court. Unpaid creditors and beneficiaries must be provided notice of the filing. Once the court is satisfied that all of the procedures in handling of the estate have been complied with, the account is approved, distributions are made, and the personal representative is discharged from his or her duties.

Complications can arise if those named to receive property are not available to take distribution or if property that is supposed to pass to a specific beneficiary is not in the probate estate at the time of death. Other complications may involve challenges to the validity of the Will, challenges brought on behalf of children born after the Will was executed or some other challenges to the distribution of the probate estate. To avoid such complications, a Will should fully address the testator's intentions should one of these events occur.

Because probate is time consuming and expensive and requires court, many Californians use a trust to avoid the drawbacks of a will based estate plan. With a trust based estate plan, only property that hasn't been transferred into the trust and has no other death beneficiary provision will requires probate.

CONSERVATORSHIP

The prospect that a family member, close friend or other loved one cannot take care of himself or herself, and can no longer mange his or her own affairs, means that someone will be required to assume those responsibilities.

If incapacity has been anticipated, and taken account of in creating a trust, or executing a power of attorney, and creating an advance health care directive, or health care power of attorney, the caregiver is identified and the mechanism for providing the care is established.

However, if there has not been this kind of advance planning, it will become necessary for the probate court to appoint someone to act on behalf of the disabled or incapacitated person. The legal procedure by which this is done is called a "conservatorship", often considered a "living probate", as conservatorship proceedings closely mirror the administration process of a decedent's estate.