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By: Scott Grossman on July 19th, 2017

Your probate attorney should not be your conservatorship attorney

Your probate attorney should not be your conservatorship attorney.

More accurately, if your conservatorship attorney allowed your loved one to die without telling you how to avoid probate, then they shouldn’t be your probate attorney. In California, conservatorships require the filing of an inventory and appraisal with the probate court.  The inventory and appraisal tells everyone involved in the conservatorship how property is titled and its value. This means your conservatorship attorney knows if your loved one’s property title is in their name or in the name of their trust.

A good conservatorship attorney should recommend the creation of a trust to avoid probate.

If the conservatorship attorney knows your loved one has substantial assets and does not recommend the creation of a trust to avoid probate when your loved one passes away, the conservatorship attorney failed to provide you an important alternative.  He or she should have advised you that there is a way to petition the probate court for the creation of a trust to hold those assets.  If the conservatorship attorney didn’t advise you of this procedure while your loved one was still alive then you have to ask yourself why not. There are very few reasons why the attorney would not raise this topic while your loved one is still alive. A cynic might say that the topic of creating a trust didn’t come up because the conservatorship attorney believed that when your loved one died you would return to him or her for the probate of their estate.

You are under no obligation to use any particular attorney for your loved one’s probate case.

  • You do not have to use the conservatorship attorney.
  • There is no legal, financial, or moral obligation to that attorney.
  • Choose any attorney you want to represent you in the probate.
  • You would be wise to change attorneys given your conservatorship attorney’s failure to advise you of options available while your loved one was still alive.

The failure to advise a client during the course of the case is a particularly egregious error.

Conservatorships take place in the probate court. The probate court supervising your loved one’s conservatorship is probably the same court and judge. They would hear your loved one’s probate case. Anyone who has spent any time acting as conservatory knows only too well how difficult things can be in probate court. There is no reason to reward an attorney who failed to give you the option of avoiding probate court when your loved one died.