0:00 [Music] who are you and where are you going what do you [Music] want hello and welcome to trust and Estates weekly I'm your host Kevin bemel and we're here every Monday at 10: a.m. Pacific time to talk about trust in estate administ ministration Estate Planning and all matters in that realm whether it's from both from the
0:36 standpoint of your own estate planning but also if you're a professional like me who uh helps people with these uh matters and so today I'm going to talk about the role of the judge in a probate court now I practice specifically or my main practice my main location I guess I should say is California um and that is the jurisdiction that I'm most familiar with however I have dealt with matters in in Alabama for example in some other jurisdictions uh and and I find that I
1:13 found at least so far that most probate courts are um tend to have jurisdiction over the same types of cases however um your location it might be uh a little bit different than what it is here in California uh nonetheless we're going to talk about um this in in a in a somewhat General way with respect to to location or venue so uh probate course probate courts um basically handle um I guess
1:50 two categories of of of issues or matters if you will one is managing probates the process of uh an estate working its way through a court uh and and and and and the whole probate process now that may be because um the decedent left behind a will as opposed to a trust which would mean the estate doesn't go through probate or because the decedent died in testate and so there is no will there is no trust
2:26 and so that that person's property that person's estate is going to get dealt with according to the laws of the state in which uh the person was uh a resident so that's one category the other category is excuse me the other category is the managing of guardianships and
3:01 conservatorships okay now those aren't the same thing but they are somewhat similar so guardianships are when a minor generally someone under under 18 years of age is put under the custody of the court for that child's or that Minor's well-being okay now the guardian would would typically be court appointed um and that person oversees matters for the welfare of of the minor until that minor reaches
3:39 the age of majority again generally 18 years old okay at which time the guardianship may or may be may or may not be um dismissed okay and then there's a conservatorship so a conservatorship is when an adult uh is is uh essentially put under the jurisdiction of the Probate Court uh typically for the reason that that adult is no is not uh able to handle uh his
4:14 his or her own Affairs okay so you could have a person who's elderly and is no longer to to able to handle her Affairs or you could have someone who is disabled and as a result of that disability um is likely to be taken advantage of um and so is that that that person is put under conservatorship by the court and again the court would appoint a conservator now um just to give you a little background in my previous in my first
4:51 career right those of you who watch the show often enough you know that this is Kevin 3.0 so in Kevin 1.0 when I had my real estate Commercial Real Estate Services Company here in La one of my uh clients for many many many years was the Jewish Family Services conservatorship Program and this was a part of uh Jewish Family Services is a um Social Service Agency connected with the Jewish Federation of Los Angeles um they dealt a lot with um um
5:29 Jews who needed to be under conservative ship but they they were non- sectarian so it wasn't only only Jews their services were available to really to you know to anyone who wanted them and um I dealt with quite a number of cases um both um as a property manager so there were um situations where um typically a a property owner had gotten so old she was no longer able to manage the building herself and so her Affairs were
6:05 put under a conservatorship and and then um J JFS Jewish Family Services conservators they I was their sort of third-party property manager so when they had a situation like that they would call me up and I would take over the management of the property now often times the owner of the property lived in the building um and and and they were reluctant to move I use I use her because most of the cases we dealt with
6:41 were the the conservatee the person put under conservatorship was a woman so um you know you had a oftentimes a very elderly woman but she was still living in the building um and so part of of my duties was to just you know periodically make sure that she was okay and you know make sure that her unit was kept in in you know good repair just like all the other tenants in the building um and and so so in in both a guardianship case and
7:17 a conservatorship case the court appoints someone to oversee the oversee the Affairs of of an individual uh and then the court manages those guardianships and conservatorships okay so those are the two categories again the pro managing the probate process okay whether it's a will being probated or an intestate probate and managing guardianships and conservatorships okay so those are the two main categories so I'm going to talk
7:52 about what the judge does in in Probate first okay so um number one the judge is responsible for validating the pro for overseeing the process of validating a will okay so um what what typically happens at the beginning of a probate assuming that a will exists is that will is presented to the probate court for probate and the appointment of the executor in the will as the administrator or personal
8:28 representative of the estate okay now that's assuming that that executive is able and willing to serve uh if for some reason the executive is unable or unwilling to serve so then someone may be nominated in that person's place there may be a successor executive named in the will or there may not be in which case uh typically whoever is submitting the the will for probate will nominate
9:03 someone to handle that okay it may be a another family member it may be a professional like me it may be an attorney it really just depends on the situation okay and it's up to the judge to oversee that process and make sure that the will meets the legal requirements okay such as it's properly signed it's properly witnessed it was not fraudulently created okay and uh you know you might be surprised how often these issues arise uh in in in the probate court so I'm
9:39 dealing with uh two cases right now where in in one case uh after three years the Court held that the will that was submitted for probate was indeed fraudulent okay and and and so now we're dealing with the aftermath of what's going to happen there I'm dealing with another case where the deant died in testate and now um it's actually a a a child of someone con who was connected to the deedon is now seeking to um have
10:15 a will submitted for probate so that and and is is wants to be named as the administrator so she can take over the administration of the estate interestingly enough it's the same law firm uh who who representing the uh the party in both of those instances uh and and so it it's up to the court to decide whether a will is valid and therefore will be accepted into probate and then um um the appointment of the
10:50 executive or the the administrator these days you'll hear the term personal representative used and and and that personal represent can be either an executive or an administrator so an executive is someone appointed under the will by the the maker of the will an administrator is someone appointed by the court who was not um named as an executive both of those are forms of personal Representatives okay so the other um another uh duty of of a judge in Probate
11:28 is to resolve disputes so um the the um judge will hear uh challenges to the will okay such as um somebody May allege that there was undue influence on the maker of the will and that had that influence not been there the will would have been written differently or may not have been written at all or that the maker of the will lacked capacity um meaning that uh they didn't really know what they were doing um maybe they were um very sick at the time
12:07 the will was purportedly signed or maybe they had lost mental capacity maybe they were suffering let's say from you know Alzheimer's or some sort of Dementia or or some other mental impairment and and so uh somebody used um you know went went and and got them to sign a will anyway and and and in so doing uh you know the the will would be would be fraudulent because the the the maker of the will did not have the capacity to establish that as as a legal
12:44 document okay there's also allegations of um improper execution so Wills need to be signed by the maker of the will and typically also by Witnesses you usually two witnesses I think it varies from jurisdiction to jurisdiction okay but certain parties are in certain jurisdictions are excluded from being Witnesses so sometimes uh family members are are excluded from being Witnesses so if you're in a jurisdiction where that is the case so if a family member was one
13:21 of the witnesses it may be that the will was not properly executed and so the judge and there may be or there may be a dispute about that and so the judge would be would have the responsibility for resolving that dispute so let's let's use a situation where um a will was drawn up and and somebody signed it and then maybe down the road the the maker of the will and the person who signed it got married right so now that person is a family member
13:58 you know would would I could I could imagine a situation where if somebody didn't like the terms of the will they might challenge the execution of the Will based on one of the witnesses you know now being a a relative okay or you might have a situation where an EXs spouse witnessed a will and and that also raises some suspicion depending on what the relationship is between the spouses do do they have a cordial Rel relationship did they have a contentious
14:35 relationship and if the will is giving property to the former spouse you know how is you know was there some undue influence there is that proper execution so these are all types of issues that can that can be raised in the context of a will and and basically the number of issues is only Li limited by the creativity of of someone who wants to contest a will um that doesn't mean that there's legal validity to all of these
15:10 issues but the court would still have the responsibility of hearing the matter and and frankly even if it's patently frivolous the court would still have to schedule a hearing hear the matter and then in the case of of a a frivolous contest you know would likely rule uh the petition denied um with or without prejudice I I'll mention what that means in a minute but in any event no matter how spurious a claim is the the judge has the responsibility for getting to
15:45 the facts and making a decision now just as an aside when a judge in a probate court or for that matter typically any Court makes a decision about a matter like a petition that's typically what you do in Probate Court they can deny it with or without prejudice when they deny it without prejudice what that means is the petition can be refiled um if there's new information found to support the refiling of the petition if the petition is denied with
16:22 prejudice that means the petition cannot be filed again okay that means the matter is solved and that that's it now in my experience I I haven't seen a situation where a probate court judge denied a petition with prejudice I think they always want to keep open the possibility that new information uh will be found and so there's there's there's no point really to denying a petition with prejudice uh I'm not saying it never happens it just hasn't happened in my experience um but so most likely a
16:59 petition gets denied without prejudice and and that way the you know the party can go on uh to uh to to refile if there's you know some some new information found some new facts uncovered okay so resolving disputes is another uh another responsibility of the judge in Probate Court okay I mentioned appointing executiv or administrators personal Representatives Okay so and I mentioned the conditions under each of them and the executive the
17:35 administrator uh has the responsibility of administrating the estate now you will hear some personal representatives and other and other parties in Probate say that the administrator or the executive um manages the estate that's not strictly correct okay so for example if if the estate has real estate in it okay real estate typically has to be managed let's let's take an example of an apartment building that's a real simple one right rent has to be
18:10 collected from the tenants bills have to be paid maintenance has to be done etc etc okay that is the managing of that building is not part of the routine duties of a personal representative and normally a personal representative will hire a property management company to manage that apartment building okay now some administrators have that ability in house or may choose to do it in which
18:45 case they will typically qualify for what are called extraordinary fees so I think I've talked about compensation and probate in one of my previous uh shows but just real quickly in in a in a in a probate the the fees that the personal representative gets are set by law but those fees are paid for certain specific work that the administrator does anything outside of that scope entitles the personal representative to extraordinary fees and
19:20 so that's why I emphasize this word administrates the estate not manages management functions generally are beyond the scope of what a personal representative is brought in to do whether it's managing a portfolio of Securities managing property managing a business all of those are outside of the of the routine scope of the administration of an estate now the administration of the estate will require that the personal representative
19:57 see to it that assets are managed properly but that doesn't mean that the personal representative is responsible for doing the management himself okay so I just want to I want to be clear on that distinction because that's really what's going on here okay and the with respect to the court and the judge's Authority the judge is responsible for overseeing the estate Administration I.E what the personal representative is doing okay so the
20:32 estate Administration basically amounts to finding all the assets Gathering them up finding all the debts Gathering them up paying the debts and then Distributing the remainder of the state according to the terms of the will or if there is no will according to the laws of intestate succession for the particular state in which the will is being uh probate ated okay that is the function that is what the personal representative the executive or the administrator is charged with doing now
21:08 notice that nowhere in there does it say manage the assets of the estate okay that is not part of the administration process it's the overseeing of the management that the the administrator is responsible for Okay so uh the the court would only indirectly oversee the management of the assets of the estate only through the effective administration of the estate by the administrator now you may be saying wow
21:45 that that's kind of a distinction without a difference not not really okay so typically the uh the administrator is not going to be submitting um you know ly reports on the management of property to the court that's not what what the administrator is going to do okay um and and even in a final accounting uh I mean depending on the situation the the administrator may not be reporting on the management of the assets per se only the results of
22:21 the management of the asset I.E the net income from this asset was you know X Y or Z okay um and especially if those let's real estate is the easiest one to to to see this with let's say those assets are owned by an are owned by entities so let's say each property is owned by an individual LLC so the management of the property within the LLC is not something that the court is really going to be concerned with per se it's it's really only the
22:57 administration as it relates to the management of the LLC that the court is going to be concerned about okay so so keep in mind that distinction between Administration and management because the Court's Authority is over Administration not it's not directly over management okay finally the court is responsible for certifying the final estate closure so uh the personal representative um will um have to we will typically have to
23:32 submit a final accounting of the estate to the court unless it's waved okay now the the um the beneficiaries uh do have the right to wave of final accounting okay and and sometimes they will and sometimes they won't it really depends on the the particular circumstances okay but in uh in sort of regular procedure uh the the personal administ the personal representative I mean will submit a final accounting okay and that final accounting shows all the assets the
24:09 income and the expenses occurred by the estate during the probate and and and basically shows that all obligations have been fulfilled all debts have been paid all taxes have been paid okay and and that all the uh a all the remaining assets have been distributed to the beneficiaries okay and then the judge has the responsibility of all to see that all of that has been done properly and now the judge orders the estate closed okay or or orders I should say not the estate orders the probate closed the probate is the court action uh which
24:44 which the judge has cognizance of or cognizance over okay so in the managing of a probate by the judge that those are the areas where the judge gets involved D okay now with respect to um managing guardianships and conservatorships okay so as I'm as I mentioned earlier these are situations where you have a a an incapacitated individual or a minor or a vulnerable party and and making sure that they're
25:21 not taking advantage of that their Affairs are handled properly Etc okay so um and I mentioned before again a guardian is appointed for a minor a conservatorship is um basically appointed for an adult who's un unable to oversee their financial or personal affairs okay now the the court appoints the guardian or the conservator and then overseas monitors that that individual um they will typically be responsible for reporting to the court periodically
25:56 about what they've done about what issues have have Arisen how they've been handled okay and and in and the court will in general be responsible for ensuring that the guardian or the conservator fulfills his his responsibilities okay now um conservatorships Can can be broader or narrower it depends on the circumstances okay and um and so it it it's it's it's hard to go into the details because they will vary
26:33 considerably depending on the situation uh but they will typically the kinds of things that are handled within uh a guardianship or conservatorship is financial matters um the the the booking of income the paying of expenses the maintenance of assets the payment of debts not unlike what you what you hear about in Probate so the same kind of activity the difference is that in a probate it happens just while the estate is going through probate for a con
27:10 guardianship or a conservatorship it happens as long as that guardianship or conservatorship is in place and that could be for years it could be for the rest of the life of of someone under a conservatorship um until that person passes away and now uh at the point where the person passes away the conservatorship will end and now there will be a a process of dealing with the person's estate either if the person had a trust so it will be the administration
27:45 of the trust or if the person had a will then it will be a probate like we talked about like I talked about just a few minutes ago okay with a guardianship that guardianship may end when the child reaches the age of majority uh typically 18 um however again as I mentioned before a guardianship could in essence be converted into a conservatorship after the child turns 18 If the child is still unable to handle uh his his own Affairs and Ju Just like with a um
28:21 conservatorship the matters handled in the guardianship are not necessarily just Financial Cal matters they could be personal matters such as schooling such as um uh social activities um The Guardian basically steps into the role of of a parent um and now sometimes a parent will be appointed a guardian um um other times not um but in any event uh typically a Guardianship and a
28:56 conservatorship have cognizance over a broader array of issues than purely Financial issues okay they're there to protect V the vulnerable party okay that's that's the key thing to remember and when the court monitors a guardianship or a conservatorship that's what the court is going to be looking at this the whatever the extent of the issues are they the court will be reviewing them and making sure that they're being handled properly okay so um is the child progressing in
29:32 school uh is the adult um being properly taken care of physically are their health care needs being met physical Health Care Mental Health Care um it is part of the Guard part of the conservatorship um making sure that the person gets to worship services so that their spiritual welfare is being taken care of all of these things can be part of what the court what the judge oversees or monitors with respect to a guardianship or a conservatorship okay so that's the second category of matters
30:07 that the court will that a probate court judge has cognizance over now there are some um uh issues that the judge oversees and that are the same for both uh both types of matters and I just I just want to um talk about those for just a few minutes here before I wrap up the show so again one of them is addressing disputes so beyond a dispute over whether a will is valid there are myriads of opportunities for disputes to
30:43 arise in a probate or in the case of a guardianship or conservatorship so I handle a conservatorship uh one time or I didn't handle conservative ship I was not the conservator I was involved this was a conservatorship handled by Jewish Family Services where the conservatee the person under the conservatorship needed some uh significant health care services and did not have the uh the cash to to pay for them now the the
31:18 woman had other assets but the way her will was set up um it was in such a way that if one asset was sold um that that Heir would lose out on his inheritance if the other asset were sold that Heir would lose out on his inheritance and so even though their mother was still alive they were already fighting over what would be sold in order to see to it that their mother was taken care of now aside from that being disgusting on a human level that these children are fighting over money and in
31:54 the meantime their mother needs Health Care the the court was charged with um figuring out add to was charged with addressing that dispute and figuring it out and and and now as I'm telling you this story I I don't recall uh what ended up happening I I think I think the court decided that some of the stocks and bonds would be sold um because that wouldn't completely disinherit that party while selling the house um would have completely disinherited the other party I think I think that's
32:30 what it was um my suggestion was that there be a negotiation between the beneficiaries of the will and an agreement that notwithstanding what the will said that um they would share 5050 in whatever was left in the estate at the time of their mother's death and that way that there wouldn't be sort of ongoing disputes about you know what what money was going to be used Us in order to care for in order to care for the conserva that that was the recommendation I gave I I don't know I I
33:06 don't recall now if if they tried that and and they couldn't get them to agree or what exactly happened but in any event it it was the court that had it was the judge really that had the authority to address that dispute and in the end decide what was going to be done now it's not that the conserva I'm sorry the conservator didn't have the authority to sell one type of property or another sometimes a conservator or a guar um um or a guardian or for that
33:41 matter a personal representative will have the authority to do something but because there is a dispute they will submit it to the court to get the courts okay to do the to do the action that the the personal represent the guardian or the conservator wants to do so that down the road there's you know if if the beneficiary for example questions that the the personal representative the guardian the conservator can say well I submitted it to court approval and the
34:17 court ordered this and so I did what the court ordered okay and and for for PE for people like me who would do this professionally um in in in a number number of cases that is that may very well be the best solution so that although we ha we have the authority to do something we don't get ourselves in the estate or the guardianship or the conservatorship into trouble down the road because someone doesn't like something that was done okay so um that is the sort of dealing with disputes is
34:53 is something that probate court judges have the respons ability to do no matter what the type of matter okay uh the next thing is interpreting and enforcing laws okay so there are there's an entire probate code here in California as there is I think in most if not all the 50 states and it it it says it describes what are what is the basis for the handling of these matters okay so how will a will be probated how will an
35:29 intestate uh the the estate of an intestate decedent be handled how will guardianships and conservatorships work so the judge is responsible for seeing to it that the law is enforced now these are not criminal laws okay these are civil laws okay nonetheless they still need to be enforced just like the laws of contracts need to be enforced etc etc okay and and it is incumbent on the judge to know the law okay now if the judge isn't familiar with the law the
36:06 judge has to get familiar that's why you will sometimes see in petitions and um that that are submitted that the the lawyer drafting the petition will quote various uh statutes whether they're probate or whatever that are relevant in case the judge is maybe not familiar with that statute or needs a refresher something like that you know so the the the lawyer it it's the responsibility responsibility of the lawyers to bring
36:41 to the judge the relevant statutes statutes that um that that what I should say yeah the relevant statutes okay the the statutes that on on which the particular matter or issue hangs okay now uh it is not the responsibility of the lawyers to bring to the judge's attentions the the judge's attention statutes that don't make their case and this is this is why it's
37:17 important for the judge to have a thorough knowledge of the probate code okay because uh just like in any Court proceeding especially if it's a dispute the lawyers are there to advocate for their clients um the lawyers are not there to see that Justice is served per se the way lawyers serve Justice is by advocating as competently as possible for their client as they can and then it
37:53 is it is up to the judge since there are no juries in in a Probate Court um it's up to the judge to decide um where Justice lies now having said that um it it is not at all uncommon to see what I would call miscarriages of Justice um oftentimes the judge is doing what is expedient um and if the judge doesn't perceive that there's significant enough damage uh to worry about it the the judge will frankly ignore what is just in a
38:30 particular case in in order to move a you know a case uh in order to move the calendar along in other words get get cases heard for that day and and and and get done and done for the day okay so interpreting and enforcing laws is another responsibility of the judge in Probate Court okay and then finally and and as as we've t as I've talked about already approving financial decisions so as a matter of course um the
39:05 judge in a probate uh has the duty to review and approve the final accounting in guardianships and conservatorships the judge has the duty to um monitor the reports submitted to make sure that uh everything is being done properly now often times it's not the judge who's doing the detailed monitoring there are what are known as probate attorneys these are lawyers who work for the probate court and they do the the more tedious daytoday work of the court and
39:41 then report to the judge on their findings some judges rely more on the probate attorneys than others I suspect I don't know this for a fact but I suspect some judges will rely more on certain probate attorneys than other as being as those ones being you know more reliable in in the reviews that they do the advice that they give Etc okay so again the two major types of matters o over which uh the the judges and probate courts have have power are
40:16 probates and guardianships and conservatorships okay those are the two types and the judge is there to deal with the law make sure it's applied properly deal with disputes make sure those are resolved um oversee um the the the process whether it's the probate or or the guardianship or conservatorship um and finally approve financial decisions and make and I should say and and make a decision as to whether and when a a Guardianship and conservatorship should end just like the
40:53 judge decides you know when when the makes the final decision on closing the probate okay so as I said these These are that is the role of the probate court judge and some are better at it than others frankly some have more experience than others um I'm I'm dealing with a very very experienced judge in Alabama he's actually getting ready to retire soon it's going to be a big loss to the Jefferson County Court um and I've dealt with some very
41:28 inexperienced judges here in California and you can see if if you were a party to uh the proceedings you would see a vast difference in how things are handled um and and and and and it's it's it's a shame but that is the reality of of the court system under which we're operating these days so if you have any questions comments uh please uh drop them into our social media all the links will be in the show notes after the show uh posts
42:03 and if you have any uh questions of a more personal nature my email address will also be in the show notes feel free to send me an email with the caveat as always that I will respond if it's within my area of knowledge if not I I will make a recommendation that you get you know legal advice or you get accounting advice or whatever it is and if you need a referral I will be happy to make a referral if I have one for you uh okay so that that wraps it up for today um by the way since I mentioned my YouTube channel um if you are not
42:40 already a subscriber I'd really appreciate if you would consider subscribing I'm uh looking to get to uh 500 subscribers I'm pretty close now that's the minimum number that I need in order to qualify for YouTube's monetization program so um I'm very very close in fact here I'll I'll give you the number uh and the number is uh I'm I'm at 461 subscribers so I need 39 more subscribers and I hit my goal um so if if if if you're not already a subscriber again I'd really
43:15 appreciate if you consider becoming one and that way you'll get notified anytime a show goes live and and and you'll know um and you can join us live or you'll know to come visit the channel and uh watch the episode there by the way you can also watch episodes now on Spotify and apple podcast okay so um I I'm not able to stream live on those um Outlets but um I do upload them generally speaking within an hour or a few hours of a show and once they're up
43:51 on Spotify I think within uh 24 hours they they are also um up on Apple podcast so wherever you th th those are the three largest video podcast platforms um and so wherever you prefer to to watch your shows um hopefully I'm there for you so uh tomorrow at 10:00 a. Tuesday is my show business lessons from the military and I'm going to be talking about uh I believe it's five important
44:26 business lessons we can take from the career of Lawrence of Arabia the famous Lawrence of Arabia otherwise known as TE Lawrence um a fascinating character in military history so I hope you'll join me for that and then on Wednesday at 10: am is this month's economic Echoes where we'll talk about uh what's happening in the economy and how it affects us as individuals and then on Thursday is my every other week show jigger's place it's at 5:00 pm on Thursday again all of
45:04 these times are um Pacific time and I'm going to be talking taking you to the South Seas for for a tahan Breeze cocktail and talking about one of my favorite book books of all time Mutiny on the Bounty I've read that book countless times now since I was a kid and uh so uh as we head toward the end of the week on Thursday afternoon uh a little journey to the South Seas and again Mutiny on the Bounty so and then of course a week from today I'll be back with the next uh edition of the next
45:42 episode of trust and Estates weekly so I thank you so much for joining me especially those of you joining me live always great to uh to see the little number ticker up here in the corner and wishing you a wonderful rest of the day signing off Marie darling You Are