What is meant by “living probate”?
A living probate is a legal proceeding in the probate court which is designed to protect a mentally disabled person who is unable to manage his or her financial affairs. It is possible that, prior to your death, you may become mentally disabled due to disease, stroke, or accident. Legally referred to as a conservatorship or guardianship, a living probate is a legal proceeding in the probate court which is designed to protect a mentally disabled person who is unable to manage his or her financial affairs. It is the duty of the probate court to protect the disabled person’s assets, creditors, and personal rights and to appoint someone to manage and assume the mentally disabled person’s financial affairs.
There are disadvantages to a living probate:
It creates expenses. Inasmuch as it is a court proceeding, a living probate often requires the services of an attorney who will prepare the necessary court documents and make court appearances. The court may require the filing of inventories and accountings, along with periodic reports, which may necessitate the hiring of an accountant. The conservator or guardian may be required to post a bond in order to qualify for service before the court. He or she may be also required to make periodic reports to the court during the period of disability and will often utilize the services of attorneys and accountants, as well as other professionals, throughout that entire period. All these factors are very expensive to the estate.
Just like a death probate, a living probate is a public proceeding which may result in a substantial invasion of privacy and loss of personal dignity.
A living probate often involves two attorneys, one representing the family and one attorney that is appointed by the Court to represent the person. Recently we witnessed in Court the appointment of a husband for his disabled wife. They had not planned for this untimely and difficult process. There were two attorneys involved who were required to insure that the husband was the proper person to care for his wife. There were no complications, but the husband was forced to stand in open court, expend precious monetary resources and go through this process. The husband was appointed as conservator for his wife, but the process will not stop for years to come. The husband will be required, no matter the size of the estate, to report to the Court all of the financial activity incurred on behalf of his wife on an annual basis. More cost, more unneeded oversight and more intrusion.
Please consider this possibility - I know firsthand in my family how difficult this process can be. The expense of this legal process is not merely monetary, the process alone has created a break in our family relationships that may be irreparable.
Let us know if Waterford can help you avoid the possibility of a "living probate".