Hi All:

I need clarification on something. I touched on some of this earlier in the year but now, if any of you are willing to point me in the right direction I would really appreciate it.

As some of you may know, my Dad passed away quite suddenly earlier today.

And as some of you may or may not recall, my mother is suffering from the after effects of the stroke she had about 18 months, or so ago.

According to my Dad's will, my mother has been named the executor, unless of course she has predeceased him, or is incapable of carrying out the duties of executor which she is.

The problem is this: The stroke effected her mentally, and while she is lucid she doesn't have the physical strength, or requisite intellect left to make intelligent decisions.

I haven't spoken with her face to face yet(thats wedensday, or thursday)and I don't think she will object to me executing Dad's wishes. However, if she does, I understand that I would need to go to probate court and get my self named her conservator.

Presuming I have to go this route can I do this, A. By myself, ie not retain counsel, and B.Will the court grant my conservatorship over my mother, even over her objection?

Next: I did have the opportunity to read the will about two or three years ago, and it seemed pretty clear as to what goes to whom. Does this mean that I can just carry out the terms of the document, or must the will still be probated?

Naturally, if I need to retain counsel for this I will. However, I'd prefer to do it myself. I have a feeling that there isn't as much cash in the estate as I had hoped. I am concerned about this because my mom only recieves minimal Social Security. Consequently, I want to save as much money for her support if possible.

Thanks for your help.

Cliff.

you would be surprised how often experienced lawyers may have quick & practical solutions for things like this.

Noting you may be in LA, may I suggest you call this lovely & reasonable lady, who is a specialist
http://members.calbar.ca.gov/search/member_detail.aspx?x=78500

BUT if you tell her Bill Rehnquist sent you, she may think YOU need the conservator, eh?

In a will, the testator (the person who made the will) may nominate an executor, and the nominated person has priority to act, but the court can and may appoint someone else.  I'm using CA law here by the way.  If your mom doesn't file a petition to act, she isn't going to get to act, but the best route is to get a declination from your mom then petition yourself.  Your mom may need a conservator, but if you are named as her conservator (of the estate), you still would have no authority to act on behalf of your father's estate.  If your mom gets a consevator, she lacks the capacity to act and someone else would then need to petition to act for her.  If your mom needs a conservator (of the person or estate or both), you can get appointed over your mother's objections if the court thinks it is in her best interests to have a conservator.  Most proposed conservatees object to conservaotrships if they have enough lucidity to comprehend what is going on.  A probate investigator and possibly a court appointed attorney for your mother will report to the court as to what they think is needed for your mom and the court is likely to follow the recommendations of these reports.  There is no statutory prohibition to doing a conservatorship w/o an attorney, but to act as conservator of the estate, you will need to post bond, and most bond companies will require you to have counsel.  Probate judges also aren't always very nice to people representing themselves because probate has a lot of procedures that most lay people screw up, making matters last much longer than need be.  As far as just distributing your dad's assets according to the will yourself, don't do it.  Anyone names as the beneficiary of POD accounts/TOD Accounts/Life Insurance/IRAs needs to claim the funds him or herself.  If your father's estate doesn't require a formal probate, the beneficiaries can claim all other assets using small estate affidavits.  PM me if you need more detailed info.