If on your death you leave a Will as the primary document for handling your estate, then in most cases the Will must be probated. Probate is a court procedure for the proving of a Will, gathering of the assets and making an inventory, the payment of debts and expenses and distribution of the property at the conclusion of the process. In California, probate is a regimented, lengthy and an expensive process and the goal of any estate plan should be to reduce or eliminate the need for probate all together. Probate may also be taken out when someone dies without a Will (known as an intestate death). In small estates, currently under $150,000, Probate may not be necessary.
A Guardianship, also known as a Probate Guardianship, is put into place when a minor is without a parent to oversee their personal care, safety, financial support and overall well being. Typically the need arises when a parent (or parents) die leaving minor children, but can also occur when the parent (or parents) is absent due to incarceration, illnesses, substance abuse or domestic violence. The Guardianship process is a court-supervised with specific rules and requirements as to the appointment of a guardian, how the guardian conducts his or her responsibilities, and is subject to continuing court supervision.
There are two types of Guardianships:
Guardianship of the Person
A guardianship of the person provides for the care, custody, control and education of the minor. The guardian must provide for the minor’s daily needs including schooling, medical care, clothing, shelter and food, along with love, attention and other psychological needs.
Guardianship of the Estate
A guardianship of the estate provides for the management and control of the minor’s property until he or she reaches the age of eighteen. The guardian is responsible for all aspects of the minor’s property, and is subject to strict compliance and oversight by the court. In many cases, the funds of the minor may be placed in blocked accounts where no withdrawals may occur without a court order.