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When is “living probate” necessary?

Posted by Lauren Rios | Apr 11, 2019 | 4 Comments

If you become incapacitated, who is going to take care of you?  You will not be able to make medical decisions for yourself and you will not be able to manage your day-today affairs.  If you do not have the appropriate estate plan in place, your family may be headed to the probate court long before you are deceased.

Conservatorship or Guardianship Proceedings

In some states a living probate is referred to as a guardianship or conservatorship proceeding. When someone is unable to manage his or her own affairs – often due to illness or older age – family members may need to seek court intervention to appoint a conservator or guardian. This court-appointed individual is authorized to make financial decisions on behalf of the incapcitated person; the same person or sometimes a different individual also appointed by the court will take over control of everyday matters including medical decisions. These living probate proceedings are public, time-consuming, and expensive.

Avoiding Living Probate

While there are several ways to avoid living probate, the best way to do so is quite simple – do the planning and appoint someone to handle your estate planning matters. This includes putting together a medical power of attorney that designates an individual you would like to make medical decisions for you on your behalf when you are unable to do so. Likewise, a financial power of attorney can designate an individual to make financial decisions for you when you cannot. You can choose to appoint the same person for both roles or different individuals – it is up to you. It is important to note that some financial institutions have their own forms that must be completed to designate someone to access your account on your behalf.

Seek Estate Planning Professionals

Because time can be of the essence when dealing with medical or financial issues, it is crucial that you have the appropriate documents prepared to facilitate these transactions when you are unable to participate. An experienced estate planning attorney can help guide you through this process and draft your documents so that they follow all applicable formalities to ensure validity.

About the Author

Lauren Rios

Attorney Lauren Rios established her estate planning process on the philosophy that everyday people deserve access to the exemplary services of a big firm, but with the personal touch of a smaller firm. This belief is reflected in her delivery provided to her clients in the Bay Area.


Lyla Peterson Reply

Posted Jun 17, 2020 at 08:39:13

It’s good to know that living probate applies when you are no longer able to make your own decisions. Since I don’t have a spouse, I have been thinking about creating a will to secure my assets should anything happen to me. It may be a good idea to arrange for living probate as well, just in case.

Lauren Rios Reply

Posted Jun 17, 2020 at 09:19:40

Thanks for your comment, Lyla. Yes, it’s very important for any adult to prepare for the possibility of incapacity. Our office would be happy to discuss this with you. Please call us at 650-727-0900 to schedule a time to chat. We look forward to hearing from you.

Martha Reply

Posted Aug 04, 2020 at 11:18:41

Yes, I totally agree that designating power of attorneys are the best option, if possible. It saves a lot of time in the case that something would happen. Thanks for sharing, this helped me a lot! visit website

Lauren Rios Reply

Posted Aug 04, 2020 at 12:22:24

Thank you for reading this blog post and commenting! Having a plan in place before incapacity is always the best option.

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