Avoiding Living Probate

Probate court isn’t just for processing wills after death. If you become mentally disabled and can no longer make decisions about your own care (and how to pay for it), the court will appoint an agent to take over your personal affairs. That includes making decisions about your assets. This kind of “Living Probate” is also known as “Conservatorship” or “Guardianship Proceedings.” The Living Probate process is very time consuming and expensive, plus your assets and debts are exposed to the general public through the process.

Joint Tenancy and Living Probate
If one of the joint tenants in a joint tenancy ownership is mentally incapacitated or otherwise unable to make a major decision regarding property (such as the sale of property), nothing can be done without the help of the probate court. The court actually takes over the incapacitated joint tenant’s role, and will manage the property until the incapacitated owner recovers or dies. The risk of leaving your property in the hands of the court, which does not necessarily have your best interests or those of your co-tenant in mind, should be avoided at all costs.

A Will and Living Probate
Since a will only goes into effect after your death, it plays no part in a Living Probate. It also does nothing to protect your assets during difficult times that can be very expensive if you or your spouse needs nursing or home care.