Probate

Court Clerks cannot interpret the law or provide legal advice. If you need legal advice, you should consult an attorney

There are also some self-help resources available. We list some of them in the Self-Help section of our website.

Guardianship is a court process by which a person other than a parent is given custody of a child or authority over a child’s property. Appointment as guardian requires the filing of a petition and approval by the Court. This web site will provide you with some basic information about guardianships. If the Court establishes a probate guardianship, the guardianship may be:

• A guardianship of the person of the child (custody)
• A guardianship of the child’s “estate” (property)
• A guardianship of both the child's person and estate

If the Court appoints you as a guardian for a child, you will assume important duties and obligations. You will become responsible to the Court. It is essential that you clearly understand your duties and responsibilities as guardian. If you have any questions, you should consult with an attorney who is qualified to advise you in these matters.

A legal guardian is an adult to whom the Court has given authority and responsibility to provide care for a child, or to manage the child’s assets, or both.

Relatives, friends of the family, or other interested persons may be considered as potential legal guardians.

Yes. You should consider the following:

• Is a guardianship really necessary?
• Have you considered the alternatives?
• Do the parents consent to the guardianship?
• Without parental consent, is there enough evidence for you to prove the need for a guardianship?
• Do you need legal advice or assistance?

You can make a private agreement with the child’s parents to provide care for the child. A written agreement can be made showing that you have “custody” of the child with the parents’ consent. Normally, it is also beneficial to secure a medical release for emergencies, especially if a parent is not readily available. NOTE: The parents may revoke this type of agreement at any time.

You can also get a Caregiver’s Authorization Affidavit. The California Family Code allows a person who is related to a child to fill out a Caregiver’s Authorization Affidavit. The affidavit normally allows that person, as a caregiver, to enroll the child in school and secure medical treatment for the child. California Family Code § 6550 provides details about this law. The caregiver form may be available through private legal publications or from a private attorney. NOTE: The parents may revoke your authority or override your decision under this type of agreement at any time.

The law also allows parents to make other financial arrangements for property inherited by or given to their children. For instance, a blocked account and other protective measures can be used without the appointment of a guardian of the estate. Consultation with an attorney for these types of matters is highly recommended. NOTE: Some financial institutions, insurance companies, and courts require the appointment of a guardian of the estate before they will release funds on behalf of a minor.

A conservatorship is a court proceeding to appoint a qualified person to manage financial affairs and/or the personal care of an individual who is either physically or mentally unable to handle his or her own affairs. The person or organization the judicial officer chooses to do this is known as the "conservator." A conservator can be a family member, friend or professional person. The person who cannot care for himself or herself is called the "conservatee."

Yes. There are two types of conservatorships:

A Limited Probate Conservatorship applies when the conservatee is developmentally disabled. In this type of conservatorship, the powers of the conservator are limited so that the disabled person may live as independently as possible.

A General Probate Conservatorship is 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 making them subject to undue influence.

Once a petition for conservatorship has been filed, the Court will set the matter for hearing. A court investigator is assigned to interview all persons who are the subject of a petition for conservatorship before the first hearing is held. The court investigator may interview numerous family members, neighbors and others to provide as much information as possible to the Court to assist in making a determination as to whether to grant the conservatorship. When interviewing the proposed conservatee, the purpose of the interview is to determine whether the person understands the proceedings or has any objections to them.

A conservatorship of the person ends when the conservatee dies or the conservatee regains the ability to handle his or her own personal/financial affairs. A conservatorship of the estate ends when the estate runs out of money.

Lanterman-Petris-Short Act (LPS) Conservatorships are established to provide help for persons who suffer from a mental disorder or chronic alcoholism. These conservatees may be a danger to themselves or others. The conservator is responsible for helping to find a placement and mental health treatment for the conservatee who is gravely disabled.

An LPS conservatorship is used only when the person needs mental health treatment but cannot or will not accept it voluntarily. Because the person subject to an LPS conservatorship may be placed in a locked facility, there are special protections to ensure that the conservatee's civil rights are protected. By law, these cases are treated as confidential.

Court Clerks cannot interpret the law or provide legal advice. If you need legal advice, you should consult an attorney.

There are also some self-help resources available. We list some of them in the Self-Help section of our website.

A Last Will and Testament is a legal document in which you give certain instructions to be carried out after your death. For example, you may direct the distribution of your assets (your money and property) and name your choice of guardians for your children. It becomes irrevocable when you die. In your Will, you can name:

• Your beneficiaries. You may name beneficiaries (family members, friends, spouse, domestic partner or charitable organizations, for example) to receive your assets according to the instructions in your Will. You may list specific gifts, such as jewelry or a certain sum of money, to certain beneficiaries, and you should direct what should be done with all remaining assets (any assets that your Will does not dispose of by specific gift.)
• A guardian for your minor children. You may nominate a person to be responsible for your child's personal care if you and your spouse die before the child turns 18. You may also name a guardian, who may or may not be the same person, to be responsible for managing any assets given to the child until he or she is 18 years old.
• An executor. You may nominate a person or institution to collect and manage your assets, pay any debts, expenses and taxes that might be due, and then, with the Court's approval, distribute your assets to your beneficiaries according to the instructions in your Will. Your executor serves a very important role and has significant responsibilities. It can be a time-consuming job. You should choose your executor carefully.

Keep in mind that a Will is just part of the estate planning process, and whether your estate is large or small, you may want to create an estate plan. For more information on estate planning, please check with an attorney specializing in estate planning or see the California State Bar’s pamphlet entitled “Do I Need Estate Planning” at the California State Bar’s website

The Court also hears disputes pertaining to living and testamentary trusts. The person charged with administering the trust (called "trustee") is required to distribute assets as described in the trust instrument. The individuals who will benefit from the trust are called "beneficiaries."

Trustees, or beneficiaries, of the trust may petition the Court to remove the trustee, release assets held by the trustee, amend the trust instrument, appoint successor trustees, appoint receivers, notify creditors, and make other orders necessary to ensure the timely and appropriate distribution of the trust's assets. Check with a qualified attorney if you have questions or need advice on petitioning the court in a trust case.