Gloria D. Córdova, Estate Planning & Probate Attorney

The Law Office of Gloria D. Córdova provides Probate and Trust Administration, Conservatorships, and Guardianship legal assistance. Probate is a court-supervised process for transferring a deceased person’s assets to the beneficiaries listed in his or her will. Typically, the executor named in your will would start the process after your death by filing a petition in court and seeking appointment. Your executor would then take charge of your assets, pay your debts and, after receiving court approval, distribute the rest of your estate to your beneficiaries.

If you were to die intestate (that is, without a will), a relative or other interested person could start the process. In such an instance, the court would appoint an administrator to handle your estate. Personal representative is another term used to describe the administrator or executor appointed to handle an estate. Trusts may be administered with or without court supervision, depending on the terms of the trust and the manner by which it was created. A trustee administers the trust assets for the beneficiaries named in the trust in accordance with the trust terms. The trust instrument sets forth the testamentary desires of the person who established the trust.

Simpler procedures are available for transferring property to a spouse or for handling estates in which the total assets amount to less than $100,000, for assets held in joint tenancy, or an estate comprising of only life insurance or retirement benefits. . The probate process has advantages and disadvantages. The probate court is accustomed to resolving disputes about the distribution of assets fairly quickly through a process with defined rules. In addition, the probate court reviews the personal representative’s handling of each estate, which can help protect the beneficiaries’ interests. One disadvantage, however, is that probates are public. Your estate plan and the value of your assets will become a public record.

The setting up of a conservatorship is a court proceeding whereby an adult can obtain the legal right to make personal, financial, or legal decisions for another adult. In most states this procedure is called a guardianship. In California, it is referred to as a conservatorship. In California, a guardianship refers to the procedure to care for minors and their estates.

Once established a conservatorship is a formal, legal authorization for the conservator - usually a spouse or domestic partner, family member, close friend, or hired professional - to make decisions for the benefit of the protected person. It restricts the conservatee’s powers over his or her own personal care and/or financial decisions. It is particularly useful when the protected person is mentally or physically unable to understand and accept help, or is vulnerable to persons who might take financial advantage of them. In that situation, with the appropriate court order, a conservatorship can prevent a vulnerable person from marrying, contracting with, or conveying property to someone else without the approval of the conservator and in some situations, the court.

Conservatorship of the Person: A court will order a conservatorship of the person for someone whose health is at risk because they can't provide for their own food, shelter, and other basic needs. The benefits of this conservatorship are that it provides a way for you to assist a loved one whose health is at risk but who refuses help and the conservator can obtain medical information and communicate with health care providers to make sure the conservatee receives the best medical care. This is particularly helpful if the conservatee is in a nursing home or assisted living home, or needs continuous monitoring of a serious health condition. he conservator has the legal authority to make basic personal and health-care decisions for the protected person. The conservator must act responsibly and file regular reports with the court.

Conservatorship of the Estate: A conservatorship of the estate is ordered to protect the finances of someone who can't competently handle their own debts and income, or who can't resist unfair financial pressure from others. The conservator has legal authority to make good financial decisions for the protected person and to sign checks and other financial documents. The conservator must act responsibly and file regular reports with the court.

Conservatorship of the Person and Estate: A conservatorship of the person and estate may be ordered by a court to protect both the health and finances of an adult who cannot care for himself or herself. There can be a separate conservator of the person and a financial conservator, or a single responsible person can be the conservator of both.

Limited Conservatorship for Developmentally Disabled Adult: A limited conservatorship authorizes the conservator to be responsible for part of a developmentally disabled adult's life and finances, as specified by the court. The disabled person will retain all of their other rights, and the conservator is legally required to get treatment, services, and opportunities to help the disabled person become as independent as possible.

LPS Conservatorship for Serious Mental Disorders: An "LPS conservatorship" is ordered by the court under the California Welfare and Institutions Code (instead of under the Probate Code, as are the other examples above). An LPS conservatorship is for a person who is seriously disabled by a mental disorder or chronic alcoholism, and who may need to be placed in a locked facility.

Legal guardianship is a means by which an adult can assume the legal and physical responsibility for minors under the age of eighteen years who are not their natural or adopted children. People may apply for legal guardianship on a temporary or permanent basis after a child's custodial parents become incapacitated or have been proven unfit to properly care for the child.

Probate guardianships do not terminate the parental relationship, but may end when the parent can resume taking care of the child. Anyone may petition the court to be appointed as a legal guardian, such as an aunt, uncle, grandparent or friend of the family. Some parents may be surprised to learn that their child can petition the court to appoint a guardian. In addition, a parent can name a guardian for their children in the case of premature death by will, or if the parent has a terminal illness. In the latter case, the court may appoint a joint guardianship, so that the guardian may provide for the child while the parent is still alive, and then take full custody upon that parent’s death without further hearing.

Probate Guardianship of the Person: The guardian has the same responsibilities as a parent. That means the guardian has full legal and physical custody of the child. The guardian is responsible for the child's care, including protecting and safeguarding the child and providing food, clothing, shelter, medical and dental care, education and any special needs .

Probate Guardianship of the Estate: A guardianship of the estate is set up to manage 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. In most cases, the court appoints the surviving parent to be the guardian of the child's estate.

Probate Guardianship of the Person and Estate: In some cases the same person can be the guardian of the person and of the estate. In other cases, the court will appoint two different people. Probate is a court-supervised process for transferring a deceased person’s assets to the beneficiaries listed in his or her will. Typically, the executor named in your will would start the process after your death by filing a petition in court and seeking appointment. Your executor would then take charge of your assets, pay your debts and, after receiving court approval, distribute the rest of your estate to your beneficiaries.