Probate

The Probate Court supervises the division of property of someone who has died (the decedent). The decedent must have been a resident of California or must have owned property inside this state. This property is called a “decedent's estate." Part of the function of the court is to oversee the payment of the decedent's debts and the distribution of the property to beneficiaries.

• It is not necessary to probate a decedent's estate if:
• There is a surviving spouse and the estate consists entirely of community property;
• The property is held in joint tenancy with another person;
• The property was transferred by gift before death or placed into certain types of “living trusts;"
• The estate consists of money in a bank account in the names of two people in joint tenancy, and that will go directly to the surviving person.
• If an estate is not worth more than $100,000, a full probate proceeding is not needed.
• If a decedent has a Will, the person having possession of that Will must, within 30 days after the death of the decedent, file the Will with the Court of the county in which the decedent lived.

• The following is a list of types of legal documents which can be filed with the Court to initiate the probate of an estate:

(a) Did not name an executor in the Will;
(b) The executor named in the Will is deceased; or
(c) The person named as executor does not want to be the executor.

• Petition for Probate of Will & for Letters Testamentary: This is used when the decedent has a Will and the executor named in the Will as “executor" files the paperwork.
• Petition for Probate of Will & for Letters of Administration with Will Annexed: This is filed if the decedent has a Will but:
• Petition for Letters of Administration: This is filed if the decedent did not have a Will and the court is asked to appoint an administrator to act as personal representative (like an executor) of the estate.
• Petition for Letters of Special Administration: A petition to authorize limited acts on behalf of the estate pending issuance of permanent Letters of Administration or to authorize permanent powers pending a contest of the Will. This petition can be heard and granted ex parte if it is not contested.

These forms can be found on the California Courts Online Self Help Center.

After a hearing on the petition, the court may issue “Letters Testamentary" or “Letters of Administration" naming the executor or administrator. During the administration of the estate, certified copies of these letters may be needed by banks, title companies, federal and state tax agencies, and others.

A “Notice of Petition to Administer Estate" must be published to notify creditors to file their claims against the estate. The time in which creditors must file their claims will be specified in the notice. Usually, they have 4 months to file a claim.

Probate cases take a while to go through court. Many detailed steps are required to ensure that all the property is identified, that all creditors and taxes are paid, and that the property is properly transferred to the beneficiaries. It takes four to six weeks to appoint an executor or administrator after the petition is filed. A minimum of four months is required after Notice to Creditors has been published before any action can be taken to distribute or close the estate. Some estates may require more involvement by the court than others, and this will increase the time for the case to be closed.

The following is a list of summary proceedings that are available as a substitute for estate administration:

• Spousal Property Petitions
• Petition for Succession to Real Property
• Small Estate Affidavit

A Conservator is a person or organization appointed by a court to manage the financial affairs and/or the personal care of a person who is either physically or mentally unable to do it for him/herself. The person who cannot care for him/herself is called the “conservatee." The court will terminate the conservatorship when the conservatee dies or regains the ability to handle his/her own affairs or when the estate runs out of money.

There are two types of conservatorships:

• Limited Probate Conservatorship: This type of Conservatorship is used when an adult is developmentally disabled, and the powers of the conservator are limited to enable the disabled person to live as independently as possible.
• General Probate Conservatorship: This is used for all other adults who are unable to provide for their personal needs due to physical injury, advanced age, dementia, or other conditions rendering them incapable of caring for themselves or subject to undue influence.

If an emergency exists requiring an immediate appointment of a conservator, a Temporary Conservatorship may be appropriate. A Petition for Temporary Conservatorship can be filed at the same time as the petition for a limited or general conservatorship, or even later if the need arises. A Petition for Appointment of a Temporary Conservator is an ex parte filing which means that the petitioner will not be able to explain in person why the appointment is necessary. All information supporting the need for the emergency appointment must be contained in the application including copies of all relevant medical, police, or protective service reports. 

The following are forms needed to apply for the appointment of a conservator:

• Petition for Appointment of Probate Conservator
• Confidential Supplemental information
• Confidential Screening Form
• Confidential Conservator Screening Form (not required by Public Guardian)
• Order to Appoint Court Investigator
• Notice of Hearing

See the California Courts Online Self Help Center. This contains additional information related to becoming a conservator.

After the Petition for Conservatorship has been filed, the clerk will set the matter for hearing. A Court Investigator is assigned to interview the person who is the subject of the petition before the first hearing. After the appointment of a conservator, the court investigator will periodically interview both the conservatee and the conservator and report to the court his findings as to the care provided to the conservatee and the estate of the conservator.

If you are appointed as conservator of a person you must:

• Arrange for the care and protection for the conservatee,
• Decide where the conservatee will live, and
• Arrange for health care, food, clothes, personal care, housekeeping, transportation, and recreation for the conservatee.

If you are appointed as conservator of an estate, you must:

• Manage the conservatee's finances;
• Protect the conservatee's income and property;
• Make a list of everything in the estate;
• Make a plan to ensure that the conservatee's needs are met;
• Ensure that the conservatee's bills are paid;
• Invest the money in the estate;
• Apply for all benefits for which the conservatee is eligible;
• File and pay the taxes on time;
• Keep accurate financial records;
• File regular financial reports to the court and other interested persons

An LPS Conservatorship is used only for persons who suffer from a mental disorder or substance abuse, maybe a danger to themselves or others, and who need mental health treatment but cannot or will not accept it voluntarily. The conservator is responsible for finding a placement and mental health treatment for the conservatee. Because the conservatee may be placed in a locked facility, special protections are provided to protect his/her civil rights. These cases are confidential.

Guardianship occurs when:

• Someone other than a parent is given custody of a child, or
• A parent or other person is given authority over a child's property, which is called a Guardian of the Estate

A child must be under the age of 18, and a guardian must be an adult. The court will appoint a court investigator to investigate anyone seeking to become a guardian.

A Petition for Guardian of the Estate is often filed when a minor is to receive a large monetary gift or inheritance. The guardian is allowed to make financial decisions for the child. The court may require that the funds be placed in a blocked bank account and that withdrawals may be allowed only with prior approval of the court.

If there is an urgent need, a Temporary Guardianship may be granted, and it enables a person to have legal guardianship of a child prior to the general guardianship hearing. The application for temporary guardianship cannot be filed separately from guardianship. It is an ex parte filing which means that the petitioner needs to include in the Declaration in Support of the Temporary Guardianship detailed information about the present danger to the child. Copies of any existing police reports or CPS recommendations must be attached to the declaration.

The following is a list of the forms needed to apply for a temporary guardianship:

• Declaration in Support of Ex Parte Request for Temporary Guardianship (Mandatory Local Form YOCV 0125)
• Petition for Appointment of Temporary Guardianship of the Person (GC 110 P)
• Order Appointing Temporary Guardian (GC 140)
• Letters of Temporary Guardianship (GC 150)

The following is a list of the forms needed to apply for the appointment of a permanent guardianship:

• Petition for appointment of Guardian of Minor (GC 210 or GC 210 P)
• Notice of Hearing—Guardianship or Conservatorship (GC 020)
• Confidential Guardian Screening Form (GC 212)
• Declaration Under Uniform Child Custody Jurisdiction and Law Enforcement Act for guardianships of the person. (FL 105/GC 120)
• The Judicial Council forms (GC and FL) are available at the California Courts Online Self Help Center. Forms are also available for purchase at the Main Courthouse, 1000 Main Street, Woodland, CA.
• For assistance in the preparation of the documents to file for a guardianship go to www.turbocourt.com
• Assistance is also available at the Yolo Superior Court Self Help Center at 1000 Main Street, 2nd Floor, Woodland, CA, or by calling (530) 406-6794.
• Once the Petition for Appointment of Guardian has been filed, the clerk will set the matter for hearing. During the period of time from the filing to the hearing, a Court Investigator will complete a background investigation of each proposed guardian, any adult living in the home where the minor will reside, and any person listed as a potential caregiver for the child.
• A Caregiver's Authorization Affidavit may be an alternative to guardianship. This form allows a relative to enroll a child in school and get medical treatment. Non-relatives may also use this form to enroll a child in school and to receive school-related medical treatment.