Probate, Guardianship & Conservatorship
Overview
Probate is the formal court procedure which occurs after death to dispose of personal and real property pursuant to a last will and testament. In event there is no will, the property is disposed of pursuant to the relevant state laws. Each state’s laws vary to some degree on the probate procedure depending upon the existence of a will and the size of the estate.
There are many reasons for probate, but the most important are: 1) allowing the transfer of clear title to real property owned at death which was not held in joint tenancy with someone else or with right of survivorship, (2) allowing a will to be established as the official will in order to dispose of the estate, and (3) allowing the estate to be distributed to the intended beneficiaries after the payment of all debts and charges against the estate and cutting off further claims by creditors against the property distributed.
It may be possible to avoid probate altogether, such as through the use of revocable or irrevocable trusts. However, whether or not the court system is used, certain documents must be filed and taxes must be paid in order to properly finalize the deceased’s affairs. Due to the complicated nature of the probate system, in addition to the emotional turmoil involved in these types of matters, a lawyer should be consulted. Call our attorneys to discuss your options today. You do not have to go through this process alone.
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Frequently Asked Questions
Q: What type of property is not subject to Probate?
A: Generally, any personal property which contains a designated beneficiary does not pass through the Probate proceeding, unless your Estate is the designated beneficiary. Examples would include life insurance policies, retirement plans, and living trusts. These types of assets would pass to the designated beneficiary, regardless of the terms and language in your Last Will and Testament. Also, if you own real estate or personal property with someone in joint tenancy with rights of survivorship, the real estate would pass to the surviving owner outside of the probate proceeding. These co-owners will inherit the property, regardless of the terms and language in your Last Will and Testament.
Q: What is a Guardianship?
A: A Guardianship is a legal court proceeding wherein a person requests to be appointed Guardian of a person (Ward). The purpose of the Guardianship is due to some disability by the Ward, such as minority, physical disability, or mental disability. The Guardian would have legal authority to care for the Ward, such as, taking the Ward to medical providers, bathing, transporting. A Guardianship would last as long as the Ward suffers from the subject disability or becomes deceased.
Q: What is a Conservatorship?
A: Like a Guardianship, a Conservatorship is a legal court proceeding wherein a person requests to be appointed for a person (Ward). Unlike a Guardianship, however, the appointed Conservator is taking care of the Ward’s personal and real property, not the actual Ward. The Conservator would have authority to do such things as access bank accounts, write checks, sell assets and preserve assets. A Conservatorship would last as long as the Ward suffers from the subject disability or becomes deceased.