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Overview: 1. What is Probate? a. Probate is a legal process, which is undertaken after a person's death. This process of designed to settle the decedent's last will and testament: If there is a will, the validity is assessed through probate. If there is no will, an executor is appointed to oversee disbursement of assets 2. What sort of cases does the probate court handle? a. estates, i. When a person dies with assets that do not pass by survivorship to another person or by other means, such as a trust, that person's estate must be "probated", a process clearing title of assets for the persons entitled to them. b. guardianships of adults (legally incapacitated individuals), i. who is alleged to be legally incapacitated or developmentally disabled. In addition, an adult person might need a conservator to handle their financial affairs if they are unable to do so because of mental illness, mental incompetency, physical illness or disability, or some other reason that would cause their property to be wasted or dissipated without proper management. c. guardianships of minors, (different standard than adults) i. The custodial parent or parents can consent to the appointment of a limited guardian of a minor. Or, a guardian may be appointed for a minor if the parent or parents have permitted the minor to reside with another person without providing that person with legal authority for the care and maintenance of the minor. A guardian may also be appointed for a minor whose parents have disappeared, are deceased or are confined in a place of detention. If a minor has property, such as a settlement of a personal injury case or as a beneficiary of an estate or insurance policy, a conservator must be appointed to administer this estate until the minor reaches the age of 18. d. guardianships of developmentally disabled persons, e. conservatorships (financial) of minors, f. conservatorships of adults, g. trust proceedings, h. mentally ill proceedings, i. The basis for the ability of the Court to order treatment is outlined in the Mental Health Code which, along with the court rules, outlines the procedure leading up to the decision of the Court. The treatment of the person could take place in a public institution or private hospital or in the community in an alternative treatment program. i. adoptions, j. name changes, k. emancipations, and l. wills for safekeeping. 3. Were does the Probate Court get its jurisdiction? a. The court has limited jurisdiction in that it comes from statute
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The Probate Estate 1. What is a Probate asset? a. Anything that is an asset and does not go through a contract b. If contract law or property law is involved, it is not a probate asset 2. What is not a probate asset? a. Examples: i. Assets you own jointly with rights of survivorship; ii. Assets with rights of survivorship iii. Assets owned by a receivable living trust iv. Assets in which a life estate is retained and the remainder passes to a non-charitable beneficiary including: 1. POD accounts 2. Life insurance policies 3. Retirement accounts annuities, investments 4. Health or medical savings accounts
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Conservatorships 1. How do they arise? a. When someone is unable to manage their finances i. They are not necessarily incompetent or disabled b. Another option: Sometime they go to a trust / sometimes not there are options 2. If the child has money a conservatorship will attach as well until minor hits 18 a. The funds will be used for the minor under active supervision through the probate court for the benefit of the minor 3. It is just an accounting of money 4. Any funds that a child is receiving in excess of 10k, then they are held for the child a. They are not needed in situations under 10k 5. The conservatorship ends by: a. The minor turning 18; or b. The death of the person subject to it 6. Good hypo at a. Jimmy is 14 years old and gets in a car accidentinsurance co pays him 120k and a conservator is appointed until jimmy hits age 18: i. The finds can be used for Jimmy during that time ii. But during the period before he hits 18 1. The conservator: a. Files an inventory; b. A year accounting of how the funds have been used c. The probate may require that the conservator be bonded 7. Steps of / requirements a. No different if minor and adult b. However: i. There is a difference in how they end ii. Adult conservator ship ends when the court says so or he dies 1. Though adult conservatorships can end by court order before they die, they never do iii. When funds held for a minor, courts will require that they are held in restricted accounts
Protective orders 1. Basically a power of attorney/conservatorship for the day a. Assets are being admitted for the benefit of another b. But if I am acting as an attorney in fact, the probate court does not have oversight c. If I am acting as a conservator, then the Probate Court does have oversight i. Inventory ii. Accounting 2. Conservatorship: Authority is granted to a fiduciary for a particular event
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