California Conservatorship vs. Probate: Key Differences

Conservatorship and probate are both court-supervised processes, but they serve different purposes. Conservatorship manages affairs during someone's life when they cannot manage themselves. Probate handles affairs after death.

Understanding both helps you plan to avoid them or navigate them when necessary.

Quick Comparison

Feature	Conservatorship	Probate
When it applies	Living person, incapacitated	After death
Purpose	Manage affairs during incapacity	Transfer assets to heirs
Duration	Until death or recovery	Until estate closed (9-18 months)
Ongoing oversight	Continuous court supervision	Periodic court hearings
Annual cost	$2,000-$10,000+ ongoing	One-time fees based on estate
Avoidable through	Power of attorney, living trust	Living trust, beneficiary designations

What Is Conservatorship?

A conservatorship is a court proceeding where a judge appoints someone (the conservator) to manage the affairs of an adult who cannot manage themselves (the conservatee).

Types of Conservatorship

Conservatorship of the Person: Manages personal decisions:

Where the conservatee lives
Medical care and treatment
Food, clothing, and basic needs
Social activities

Conservatorship of the Estate: Manages financial decisions:

Bank accounts and investments
Real estate
Bill payment
Asset management

Many conservatorships include both person and estate.

When Conservatorship Is Needed

Severe dementia or Alzheimer's disease
Traumatic brain injury
Serious mental illness
Developmental disabilities (as adults)
Severe stroke or medical condition
No estate planning documents exist

The Process

File petition with Superior Court
Court investigator interviews the proposed conservatee
Attorney appointed for the proposed conservatee (if requested)
Hearing before a judge
Letters of Conservatorship issued if approved
Ongoing supervision with annual accountings

Costs

Initial establishment:

Filing fees: $435-$500
Attorney fees: $5,000-$15,000+
Court investigator fee: $1,000+
Bond premium: varies

Annual ongoing costs:

Attorney review of accountings: $1,000-$3,000
Conservator fees (if professional): $5,000-$20,000+
Bond premiums: ongoing
Court fees for required filings

What Is Probate?

Probate is a court proceeding that:

Validates the will (if one exists)
Appoints a personal representative
Identifies and values assets
Pays debts and taxes
Distributes remaining assets to heirs

When Probate Is Required

In California, probate is typically required when:

The decedent owned assets worth more than $208,850 in their name alone
Real property was held in the decedent's name without joint ownership or trust
No beneficiary designations exist on accounts

The Process

File petition to open probate
Notice to heirs and potential creditors
Letters Testamentary issued
Inventory and appraisal of assets
Four-month creditor period
Pay debts and taxes
Petition for final distribution
Court order and distribution to heirs

Costs

California uses statutory fees based on estate value:

Estate Value	Attorney Fee	Executor Fee
$100,000	$4,000	$4,000
$500,000	$13,000	$13,000
$1,000,000	$23,000	$23,000

Additional costs include filing fees, publication, probate referee, and extraordinary fees if applicable.

Key Differences

Timing

Conservatorship: Applies during life when someone becomes incapacitated. May last years or decades.

Probate: Applies only after death. Typically takes 9-18 months in California.

Who Controls

Conservatorship: Conservator controls the conservatee's affairs under court supervision. The conservatee loses legal capacity.

Probate: Personal representative controls estate assets. The decedent no longer exists to have rights.

Ongoing Supervision

Conservatorship: Continuous court oversight:

Annual accountings required
Major decisions need court approval
Court can remove conservator
Investigations if problems arise

Probate: Periodic oversight:

Hearings at key stages
Court approves final distribution
Less continuous monitoring

Reversibility

Conservatorship: Can end if:

Conservatee recovers capacity
Conservatee dies
Court finds conservatorship no longer needed
Less restrictive alternatives become available

Probate: Irreversible process:

Once assets are distributed, probate is complete
Estate closes permanently

How They Can Overlap

Conservatorship Leading to Probate

When a conservatee dies:

Conservatorship terminates automatically
Final accounting is required
Remaining assets go to the estate
Probate may be needed for distribution

The conservator does not automatically become the executor. The will (if any) names the executor, or the court appoints an administrator.

Existing Conservatorship Affects Probate

If the decedent was under conservatorship:

Conservator handled pre-death affairs
Financial records should be organized
Debts and assets already documented
Transition to probate may be smoother

Avoiding Conservatorship

Durable Power of Attorney

A durable power of attorney for finances:

Names someone to manage your finances
Takes effect when you sign (or when you become incapacitated, depending on terms)
Survives your incapacity
Avoids conservatorship of the estate in most cases

Advance Health Care Directive

Also called a "health care power of attorney":

Names someone to make medical decisions
States your treatment preferences
Takes effect when you cannot make decisions
Avoids conservatorship of the person for medical matters

Living Trust

A funded living trust:

Allows successor trustee to manage assets
No court involvement needed
Works even if you become incapacitated
Also avoids probate at death

HIPAA Authorization

Allows designated people to access your medical information. Often overlooked but important.

Limitations

Powers of attorney have limits:

Some institutions refuse to honor them
They can be abused without court oversight
May not cover all situations
The incapacitated person cannot monitor the agent

In some cases, conservatorship may still be needed despite having these documents.

Avoiding Probate

Living Trust

Assets in a properly funded trust:

Pass directly to beneficiaries
No probate required
Faster and more private
Also helps avoid conservatorship

Beneficiary Designations

Accounts with named beneficiaries bypass probate:

Retirement accounts (IRA, 401k)
Life insurance
Bank accounts (POD)
Investment accounts (TOD)

Joint Ownership

Property owned as joint tenants with right of survivorship passes to the surviving owner without probate.

Transfer on Death Deed

California allows TOD deeds for real property. The property transfers automatically at death without probate.

Small Estate Procedures

For estates under $208,850 (as of April 2025), simplified procedures avoid formal probate:

Small estate affidavit for personal property
Simplified procedures for primary residence under $750,000

When Court Involvement May Be Beneficial

Conservatorship Benefits

Court supervision provides:

Protection against exploitation
Neutral oversight of finances
Clear legal authority for the conservator
Mechanism for resolving disputes

Probate Benefits

Court involvement provides:

Clear process for resolving disputes
Known deadline for creditor claims
Court approval of distributions
Protection for the executor

Planning for Both

Complete Estate Plan

A complete plan addresses both incapacity and death:

For Incapacity:

Durable power of attorney (finances)
Advance health care directive
HIPAA authorization
Funded living trust

For Death:

Pour-over will
Living trust
Beneficiary designations updated
Transfer on death deeds where appropriate

Reviewing Your Plan

Update your plan when:

Family circumstances change
Laws change
Assets change significantly
Every 3-5 years generally

Discussing with Family

Make sure trusted family members know:

Where documents are located
Who has authority
Your general wishes
How to access important information

Frequently Asked Questions

What is the difference between a conservator and an executor?

A conservator manages a living incapacitated person's affairs under ongoing court supervision. An executor manages a deceased person's estate through the probate process until assets are distributed.

Can you avoid both conservatorship and probate?

Yes. Proper estate planning with powers of attorney, advance directives, and a funded living trust can avoid both court processes in most situations.

What happens if someone is incapacitated with no estate plan?

The family must petition for conservatorship to manage the person's affairs. This requires court approval, ongoing supervision, and significant costs.

Is conservatorship more expensive than probate?

Often yes, because conservatorship involves ongoing costs for years or decades. Probate is typically a one-time process lasting 9-18 months with defined fees.

Can a conservator change a will?

No. A conservator cannot change a conservatee's estate plan. The conservator manages current affairs but cannot modify testamentary documents.

Related Guides

Sources:

"California Probate Code Sections 1800-2893," California Legislative Information, 2024, https://leginfo.legislature.ca.gov/
"California Probate Code Sections 8000-12591," California Legislative Information, 2024, https://leginfo.legislature.ca.gov/
"Conservatorship," California Courts Self-Help Guide, 2024, https://selfhelp.courts.ca.gov/conservatorship

This guide provides general information about conservatorship and probate in California. Both processes are complex. Consult with a California attorney for advice specific to your situation.