Probate

Probate Can Occur During Your Lifetime.

In the event you are ever unconscious, incapacitated, or a child to whom assets are willed, your relatives must apply to the court for probate guardianship in order to sell ANY of your stocks, bonds, or real property if money is needed to pay, for example, your medical bills. A probate guardianship is expensive and time-consuming. Furthermore, the Court may deny permission to sell the asset if the court believes that the expenditure is frivolous.

For example, suppose you request money to pay for art lessons for a niece you are raising. If the Court does NOT agree with the expenditure, it will deny you the money necessary to pay for the art lessons. With a probate guardianship for minors, you may raise the child, but the Court will control the child’s money. You as the guardian must submit a proposed budget, which will be approved by the Court, either in whole or in part, as the Court sees fit. You must also seek permission to sell assets, for which permission may or may NOT be approved.

The process, which must be followed for a probate conservatorship, is as follows:

• Petition the Court (usually done by an attorney) seeking the appointment of a conservator.
• The competency proceeding is advertised in the local papers to allow creditors to present their claims.
• A hearing is held to determine if you are able to handle your own affairs. If the judge determines you are NOT "competent," you then become a "Ward of the Court."
• The competency proceeding is advertised in the local papers to allow creditors to present their claims.
• A conservator is appointed. The Court usually appoints a relative, but is free to appoint anyone the Court deems qualified and best suited for the job. The Court-appointed Conservator may or may NOT be the person you would have chosen. The Court will usually appoint an attorney to handle the necessary paperwork.
• The Conservator will next submit a list of your assets and debts to the Court and a proposed budget for your living expenses. The Court must approve the budget and order the necessary assets sold to cover expenses and pay debts. From this point on, ALL EXPENDITURES, SALES OR ASSETS, ETC., MUST BE APPROVED BY THE COURT, which is a very slow, cumbersome, and expensive process.
• Upon regaining consciousness or becoming competent, you must then go through another hearing to prove you are now competent to handle your own affairs.
• Upon death, your family must again go through probate if there are any assets left.

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