Probate & Conservatorship

What is Probate

Probate is the legal process by which the assests of the deceased are passed to the heirs of the deceased. The probate process determines who gets what when someone passes away either by looking at the will, or if none exist, then the laws of intestacy - or laws that determine the hierarchy of heirs.

Basics about Probate

• Probate involves identifying and inventorying the deceased person's property, accounting and appraising the property, and then paying taxes and creditors with the deceased's assets.
• If there is a will, the assets are distributed according to the instructions of the will. If not, then state law determines who gets what and how much.
• Having a will, alone, does not mean probate is unnecessary. Although a will might make the process simpler, probate is still required for assets in the deceased's name alone.
• In general, property which the deceased owned individually has to pass through probate for ownership to pass to his or her heirs. Jointly owned property and the proceeds of life insurance, retirement accounts, and annuities pass to the surviving joint owner or the named beneficiaries without the necessity of probate.

Probate law is a complex field and the attorneys at Gavin, Olson & Winters Ltd. have substanial experience with the probate process and are able to guide you with the legal assistance needed.

What is Conservatorship

A Conservator is appointed by a court to handle the financial affairs of a person unable to do so for himself. The conservator takes possession of all the protected person's assets and must protect, invest and use them for the protected person's benefit.

What You Need To Know

Conservators are often appointed for older persons when illness or other disability requires such intervention.

Conservators take control of all of the assets of the protected person and direct that any income be paid to the conservator. The protected person cannot sell his own assets or determine how they will be invested without the consent of the conservator. Whether the protected person has any spending money is the conservator's decision.

Courts do not casually appoint conservators. A person must be given notice of a petition asking the court to act, has the right to be present at a hearing on the petition, the right to present and cross-examine witnesses and, in most states, the right to a court appointed attorney if unable to afford to hire one. There is a right to have accountings and reports from conservators and a right to have the court periodically review the need for continuation of the conservatorship.

Conservatorship when properly used, are good ways to provide continuing care and management to persons who need such help. The continuing involvement of the court provides added protection to everyone involved.

Where To Go For Help

If a family member needs to have a conservator appointed, we have attorneys that specialize in this area of the law and can assist you with the necessary papers to be filed with the appropriate court and that the correct procedures are followed. We can also advise you of various alternatives to conservatorship that may be available. Such choices may include durable powers of attorney, living trusts or other options.

If someone has filed a petition asking for the appointment of a conservator for you, you should contact an attorney at Gavin, Olson & Winters Ltd. We can advise you as to the procedures that are involved and the choices available to you. You will have to decide whether to oppose the petition, propose alternative solutions or oppose the appointment of the particular person in favor of one of your choice. If you do nothing it is likely the petition will be granted.

Contact us with any questions you may have about probate or conservatorships.