When dealing with elderly people and all the different aspects of their personal care and protection, and the protection of their property, the legal areas of wills, trusts, and probate in general, are important to be aware of.
Wills and trusts are areas of law that fall under the law of Probate. Probate courts have jurisdiction over other areas of law, also. Probate law exists mainly for the protection of people who, for any of a number of reasons, may not be able to protect themselves, for instance because they are deceased or mentally incompetent or under age. In matters that enter a probate court, a judge will supervise certain relationships between people and/or the distribution of certain types of property.
Guardians, Conservators, and Involuntary Commitment
A guardian is a person appointed by the court to manage the care of a minor child and/or his or her estate. A guardian may be appointed for a number of reasons including where a child's parents are deceased or deemed unfit to handle parenting responsibilities.
A conservator is a person appointed by the court to manage the care of the person and/or estate of an adult who has become mentally or physically incapable of managing their own life. In a case where an elderly person becomes mentally incapable of taking care of themselves, an adult child of that person will often go into probate court to be appointed conservator in order to protect their parent and/or his or her estate.
Commitment of a person to a mental institution can occur if one family member believes that another family member is suffering from a severe mental illness and is a danger to him or herself, or others. The matter is then taken to a probate court where a judge will hear it and make a determination. This protects people from being improperly shunted off to institutions, and at the same time, ensures that those who do need institutional help will get it.
Contesting a conservatorship or guardianship
There are times when it appears that the appointment of a conservator or guardian does not work out to the best interest of the protected person. In these cases, a family member may file a case in the probate court contesting the prior appointment and asking for appointment of a different conservator or guardian. At times the person to be protected by the conservatorship will contest it on the ground that he or she is now of sound mind and able to care for him or herself.
Adoptions and Name Changes
A person will also go to a probate court in order to legally validate an adoption or name change.
Wills, Trusts, and Estate Planning
A will is a formal document in which a person sets out the manner in which his/her estate is to be distributed on his/her death. When the person dies, the will is taken to probate court where the judge ensures that, as legally permissible, the deceased's wishes are carried out.
The steps of probating a will
When a will enters probate, the judge will first appoint a Personal Representative to the estate of the deceased. If the will sets forth a person for the position, then that person will become the representative, called an Executor. If the will is silent on the matter, then the judge will appoint someone to the position, usually a surviving spouse or family member. In this case the representative is called an Administrator.
From this point, it will be the responsibility of the personal representative, subject to the approval of the court, to perform numerous tasks, including the following:
- Collect and inventory the “probate property” of the estate (Certain property does not fall under probate jurisdiction, such as life insurance proceeds; property held in a trust; real estate held in joint tenancy with right of survivorship; pension proceeds and IRAs; and money or securities held in accounts with designated beneficiaries.)
- Notify the deceased's creditors that he or she has died
- File taxes for the estate
- Pay all the debts, claims and taxes owed by the estate
- Settle any disputes of the estate
- Pay the costs of probate, which include court costs, attorney fees, and fees to the personal representative
- Distribute the remaining property to the heirs of the estate
There are times when the wishes of the decedent cannot be followed, for example where he or she has ordered a distribution that is contrary to the law. California law, for instance, says a spouse might be entitled to a certain minimum part of the estate, and that could not be reduced or eliminated by a will.
On occasion an heir may be disinherited by a will, or granted a smaller portion of the estate than he or she believes is proper. In these cases the heir may sue to contest the validity of the will, and the suit will be made on one or more of the following grounds:
- The will was not created as formally required by law (For example, it was not signed by the decedent, or properly written or witnessed.)
- The decedent was mentally incapacitated at the time he or she made the will
- The decedent was improperly influenced to dispose of his or her property as written
Is it necessary to have a will?
There are several good reasons for a person to have a will, even if he or she does not have a large estate. A major reason for having a will is to ensure that one's property goes to the people or entities desired when he or she dies. When a person dies without a will it is called an intestacy, and the person is said to have died intestate. Some other reasons to have a will are:
- If a person dies without a will, his or her assets will be distributed according to state law, even if contrary to his or her wishes.
- A person dying without a will can result in unnecessary hostility between survivors.
- A person dying without a will can result in unnecessary costly litigation.
- A person dying without a will can result in greatly increased taxes.
The need for assistance
The law relating to wills, trusts – and probate in general – is very complex. A small mistake can cause a result that is entirely undesired or even opposite of the one intended. If you have any questions regarding appointing or changing a personal representative; creating, changing, or contesting a will; setting up or changing a trust; establishing or contesting a conservatorship; or any other probate matter, it is important to seek the advice of a qualified attorney who specializes in those areas of law. For more information or to arrange a consultation with an attorney, call (800) 215-1190 toll free.
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