KGCI: Real Estate on Air - Navigating Conservatorship Real Estate Sales and Court Confirmations

Episode Date: October 21, 2026

Summary:In this episode, host Bill and probate attorney Beti Bergman explore the intricate differences between standard probate sales and conservatorships involving real estate. They discuss when it is too late to avoid a conservatorship, the lengthy court appointment timeline, and why selling a conservatee's residence always requires court confirmation and potential overbidding. Agents will learn how to handle capacity issues, navigate complex court procedures, and guide families through protecting vulnerable loved ones while avoiding costly delays.

So probates are tough enough, but conservatorships, which are handled in Los Angeles County, at least in the probate court. They look like a probate. They sound like a probate. They often are the same judges, rooms and so on as probate. But they can be a whole different animal when it comes to, in particular selling real estate involving the conservators. And I'm really excited to have today, Betty Bergman, who's been in the program several times. She's a probate attorney in South Bay, who specializes and does a lot of work in conservators. Betty, thanks for joining us today.

Oh, thank you for having me. I always love being part of the show. So a conservatorship, to my mind, already means something went terribly wrong, right? I mean, probate, okay, people don't plan. They'll sign the documents. But conservatorship is something really went wrong, health-wise, didn't plan, or something's going on that requires some extraordinary legal assistance, by definition, correct? Right. It comes into play when someone lose. uses their competency and they can't make decisions for themselves. And if they don't have something in place like a power of attorney, a trust, health care directive so that it authorizes someone to have legal authority to make decisions for them,

then you're in the position of having to file for conservatorship so someone could get appointed by the court to make legal decisions for this person. So that's when conservatorships arise. Now, I get the phone calls. I'm sure you do too. I get phone calls on the real estate piece where they want to sell property and mom has questionable capacity. And they rush in a power of attorney form and say,

is this going to work? And the problem is usually the form isn't sufficient for a real estate transaction because there's some particulars that are needed by the title companies, a sure title. And then they can't go back to her because they just went to the doctor or they just discovered she doesn't have capacity. So at what point is it too late to avoid a conservorship? And then, you know, what happens at that point? Once you realize your mom's entitled, we can't sell the house without her signing something, but she hasn't had the legal capacity to sign these documents. What's the next step? Yeah, that is such a shame if that happens because a lot of times I also get calls from a family member that says, oh, my mother can no longer make decisions for herself. Can I get a power of attorney for her?

And when that mother, it no longer has the capacity to retain an attorney, a family member can't get it for them. That the person who is creating the power of attorney needs to have the capacity to create that document and to sign that document. So that's what's important. And once they lose that capacity, someone else can't get that for them. If they're in the position of, yes, they need to sell this house now and this mother, the person who doesn't have capacity, can't sign these documents. you are unfortunately in the position of having to get a conservatorship over that person. So someone has legal authority to sign any sort of sale papers for this property for that incompetent person. And what you have to get, if this person gets appointed by the court to be the conservator,

it would be the conservator of the estate. There's two types of conservatorships over the person and over the estate. So over the person is to make medical. health care personal decisions for this person over the estates to make financial decisions, property management decisions, things like that, for example, selling a house. And so if someone does get appointed, what they're looking for is what's called letters of conservatorship. And then they would record it so they are on record as the person who can dispose of this property. What's the timeline from filing to getting a hearing and being approved as a conservator,

typically. I'm sure it varies. It varies. It varies. What's a common timeline? And the courts do consider conservatorships as a priority because they understand that there's someone in need of some help and some supervision. So they do consider those cases as needing priority. But unfortunately, especially LA County, it's, you know, people are bogged down. I mean, that courts are bogged down because Iowa County is huge, and I'm sure other counties may be like this too. And so you file the, you'll have to retain it. Someone has to retain the attorney. So all this takes time.

Someone looks for an attorney and then finally finds maybe someone they're comfortable with. And then they retain the attorney. The attorney has to prepare all the petition papers. And so there's several instruments that need to be completed and filed with the court. And then you file that. And then there's a period where. a probate investigator comes out and a court appointed counsel gets appointed. And so many things need to happen before this court hearing.

And then the court hearing happens. And then you have to get the order after the hearing. So all of that, you know, you're looking at at least a couple of months, at least. And once you get that court hearing, then you need to get the order signed by the judge. Let's say it all goes well. And the judge says, okay, you're going to get appointed. you know, submit the order and then it's the order submitted with the court. And then the petitioner is waiting for that order to come back from the court. And sometimes that takes a lot longer than you

want it to. And I recently did have a case that fell right into that. And the proposed conservate was really, she had cancer and she was at the end of her life. She was already living longer than was anticipated. We did need to get the order and letters because she was her her condition was very fragile and things need to get paid. The facility, the home she was the conservatory was in need to get paid. And the conservator, proposed conservator needed to get the money, access to the money to pay this. And unfortunately, this proposed conservatory died before we got the order and letters. Yeah. And yeah. And we, and we. And attorneys like me who are trying to get the conservators

push through, we really have no controls over the courts. We can bug them and keep asking, hey, where's the order? We're waiting for this. We've been waiting for this, things like that. But we have no control over the courts. We just have to sit there and ask. And it just goes through the system as it does with everybody else who's waiting for their order and letters and things like that.

So, you know, the, I guess the lesson is to try to get some sort of plan in place, so you don't ever have to be in that position where you're filing for conservatorship and waiting for consenship order and letters and things like that. But it does happen often that that's not the case. And so we're filing for conservatorships. Well, and then the real fail, at least in my experience, when you have a conservatorship and then the conservatory passes is, well, they certainly didn't have a conservative. they plan to avoid the conservorship.

They don't have one to avoid probate. So now the asset that was previously, you're getting a conservorship to process. Now you begin a probate case, basically, from the very beginning. And that's a whole other process. And it could be the same attorney, but you got to start over again, right?

Or I should say you have to start a probate, not over again, you just have to have a probate. You never did one before. Exactly. And so again, going back to this case that just happened, when the conservancy died, we are going to have to open a probate because that conservate, the person who died, did not have a plan in place.

And so now we're in the position of having to probate the estate because there's just no trust. And a lot of people need to understand even if that person had a will, that goes through probate too. So you have to open a probate for a will. A will is like a ticket to go to probate court. Maybe you get a better seat, but you're going to probate court with your will. There's not key out of probate court. That's the biggest misconception of consumers and real estate agents that I try to say every episode, at least in California.

Other states, there are some states are different. In California, whether you have a will or not, you're going to probate court. A state plan with a trust may avoid probate court. No guarantees there, but for sure it improves your likelihood. But if you have a will, the only place to process it is in probate court. Get in line, go your paperwork out, wait around and talk about it. That's right. That's right.

And I have to say, just to brag a little bit, I think I had a unique, and I had one case where it was a conservorship, we sold some property. And then the conservator was able, the attorney was able to move the assets into a trust. So we sold some assets in the trust for the conservatory, which was, which was great. But then one property was left out of the trust. I'm on the research, this property popped up out of nowhere, and then we sold that through probate. So the same customer I sold a conservative property, a trust property, and a probate property within a one-year period. I think that was some sort of LA County record.

So, okay, and just to go back a little bit, because this is an important point, I think, for people listening, you get frustrated in the orders. Obviously, you're right, of course, right, but everything. But you're right when you say that you have to wait for the court to do the order. Because in LA County, at least, the judges don't consider the orders set before the hearing date. So you have to wait to the hearing date, then submit the order and letters that you want signed. Exactly.

Get the judge to sign, then the judge might be a vacation. The judge couldn't be busy. or the paper could be rejected by their administrator, and they're waiting for you to resubmit. In your case, you're saying you follow up on, which is great. Many attorneys are scared to follow up on it, and I tell the real estate agent, you can go online and see if they've submitted the paperwork or not,

because I've had a attorney and say, well, I submitted the paper two before the hearing. And I'm saying, well, that's not submitting it. That's the same thing. It's saying, I don't know what I'm doing, because the judges, in L.A. County, the processes, they don't consider those orders before, at least in public court. Right, right. And there's things like if there is property involved, the conservator that got appointed needs to post a bond. You can't, you know, get officially appointed into post that bond. The important thing is to get prequalified for the bond before you even file these petition papers because some people don't qualify for a bond. And then there's alternative ways to still get appointed like placing assets in a blocked account or doing other things. So there, so you want to.

get ahead of that and see if the proposed conservator will qualify for a bond and can get appointed because that bond needs to get filed along with the order the letters will not issue unless this person posts the bond so all those things there's a lot of moving parts to get all this in place and it's not that any of it is particularly deep legal theory it's very detailed procedure i think probate differs other than we get into litigation it's really about these procedures and there's there's exceptions, but generally everything has to follow the rule. And in LA County, my experience is it's got to follow the rule. You're going to go back to start and start all over again.

You will, yeah, because otherwise things will get rejected. They'll get bounced back if you don't follow all the rules and know all those tiny little procedures that need to get put in place before things are filed and things are issued by the court. So, yeah, that's all important. Otherwise, that's just going to take more time if things aren't done in the proper procedure. I don't know if you guys once in December in court and the, you know, verbally in court, the judge approved it. He turns to the clerk and says, okay, prepare the order.

And the clerk is printing out the order and hands the judge and just says, okay, here's your order. I'm like, wow, if only that happened, let's get you imagine the time spent. Now, it might be that he wasn't as busy or, again, I'm not, I'm not pinching on the judges in L.A. They have a whole different caseload. So, but still, it was like a miracle. You can just print out the form and sign it right in front of us. That was fantastic. Yeah.

So selling property in conservations is somewhat different than probate, though it's handled in probate court, and it's in the probate book or the probate chapter of rules and such. But the procedures are different. So talk a bit about when is court confirmation required? I think, let me just ask the question. Is it true that any time we're selling the property that's the residence of the conservatory that requires court confirmation by definition? That's correct.

That's correct. So if it's a conservaties residence, then there are, again, procedures that you need to follow that's different than let's say other real property you may be wanting to sell in a conservatorship estate. So the conservator needs to have, if they are able to, have a discussion with the conservate and tell them that the house needs to be sold and why and try to get the conservaties position as to whether they will consent to that sale or not consent to that. sale and then you have to report that discussion with the court. So that's that's very important. And you do need to do the court confirmation for the sale. And that's unlike other real pieces of real property that you may want to sell at a conservatorship estate. You still need the court confirmation. Now there's a probate code called 2591 where you may get authority to sell real property. The residence is different though. The residence always needs the court confirmation. But there's

local rules, and most counties, I think, have the local rules where you need that court confirmation anyway for all real properties that you're selling in a conservatorship estate. And I'm happy to cite that rule for LA County, which is where I am, it's 4.98. And so any sales of real properties, you need the court confirmation in a conservorship estate. And so court confirmation, like on a probate, requires publication, requires an attorney-appraise report. The sale has to be within 90% of that appraised value. I have seen exceptions, and the judges have discretion, but in general, it's going to be hard to get that sold other than with the appraise

report at 90% of the value of the appraise report. And then there's a potential overbidding process, which happens as well. So that's all the same process that goes on on a probate sale. And the difference here is you don't have errors kind of getting the profits, and you don't have an error hopefully involved. involved in the victory of gaining the property, the cheap. So how does it, does it look different in your experience than a probate sale court confirmation or are they identical?

The processes are almost identical. Are they identical in terms of real world? Yeah, they are. They are. So the court confirmation is subject to overbid. And so you do give notice to any interested persons, anyone who has requested special notice. That is something that someone can request and get notice of things like this.

someone that may be related somehow to the conservatory may be interested and want information about the conservatorship proceedings, they would get notice of this. And at the court hearing, the court confirmation hearing, it is subject to overbid. So people can come and bid on the property and the court will sell it to the highest bidder. And someone can object. So anybody that gets notice of the sale can come and object and say, no, we don't want the sold. the conservatory should stay in the house and then that kind of prolongs everything because then it's kind of thrown into some sort of litigation the conservator can ask for they can ask for instructions from the court as to what to do in a situation like this and the court will let people argue

about why this shouldn't be sold or should be sold things like that so that that prolongs that process if that happens you know i would think that in a conservathips, if the residents, either they're already out of the property or they are, there was a plan in place for when the property is sold.

Me, they have some sort of a home or facility or family member or something that they've ever kind of worked through before you start the process. Unlike, you know, some homeowners sell, you know, I was one.

I put my house in the market once and I didn't really know where I was going to go, but I knew we wanted to sell and we wanted to move out of the area. But with concernships, imagine you have to have a plan in place and you'd probably explain that to the court, what the plan is.

They're going to a nursing home. They're going to a facility. Right. Right. There needs to be what alternatives are available for the conservate because the court's main concern is the protection of the conservate and the conservate's best interest and well-being. So there needs to be a plan. Sometimes it's unavoidable to sell the residence because that's the biggest asset.

And the conservate needs caregiving, which is very expensive. and that may be the only source of funds that can be used for that care. And even if the conservate doesn't want it, because that does happen, the judge will order it or approve it, nevertheless, just because that's the only way to protect and pay for the expenses of the conservat. And it is unfortunate, but it does happen. You know, I've been involved in a few cases personally where, you know, for the safety of a parent, you know, they just couldn't live on their own. They're widowed.

They had health issues. They had, you know, falling down, safety issues, security issues. And, you know, yet, you know, because it's sound mind, we couldn't talk them out of it. Like, you know, it's not so simple. It might be a better decision for them to sell their house and move to a facility that's safe. and better care, but there's something that people get scared. You're just sending me there because the line I hear all the time is, you see me there because you want me to die there.

And it's like, well, no, we want you to live a better life. I imagine with conservatorships, even though they may not have capacity, they still have some ability to express something. And I'm sure that's a natural reaction for them too, right? Crying and I've seen in court and resistance. And yet there's no other financial option that's medical. sound, right? They're in the house by themselves. They're falling down. They can't afford a 24-7 care in the house. Right. And so they're looking to move to a facility that's properly designed

for elderly people. What is that like? That must be a challenge in the court. And then, you know, is it is. And you get one sympathetic daughter and the whole thing kind of falls apart, I would think. Right. I mean, it's hard for everyone. It's hard for everyone involved when something like that happens. I mean, alternatives should be explored before we get to that point. you know, reverse mortgages are out there. That's a possibility. But sometimes that's the only thing that you can do. And, yeah, it's just unfortunate.

It's unavoidable unless some people plan ahead of time. But planning, that's a financial matter. Because even if you plan, if you don't have enough money saved up for caregiving at home, which is very expensive. It's just a huge expense. That's the most expensive way of getting care is having private caregivers in your home. And so probably the majority of people may not be able to afford that, honestly. So if there's family members that can help, there's a lot of times there are family members that will come forward and be able to, you know, kind of take care of this conservatee.

But that's not always the case and that and they have to be moved into a home, a facility or something like that. That costs less than a private caregiving. Yeah. And it just seems like, again, like I said, there are facilities that are designed for the safety and fuller life. You know, I think that, like in my experience, we have family members who are living very small lives by themselves. And some of these facilities have, you know, group activities and there's, you know, group meals, group games, group outings and such. And you say, you know, mom, dad, look much better life you're going to have. And the reality is they feel like they're just going to go and wait to die. And they, you know, while some people, you know, flourish in those environments, those are challenging.

And then you see, I would see in court, you know, they would have the, I guess the investigator would say, no, she really does move and recount like the whole horror and the emotions. And the poor attorneys, they're like, we don't really have a choice. Like, I'm not heartless. I'm trying to save this person's life. So you must have some pretty thick skin to sit there in court and deal with these situations. You seem like a nice person. I just kind of imagine that situation. No, and I've done so many of these cases. And I've also on the panel of court appointed counsel,

so I'm representing a lot of these conservatees and positions like that. A lot of times the courts will, the court will appoint what's called a court appointed counsel to represent a proposed conservate in when a conservatorship is being implemented. Sometimes the courts will pull them in just for the sale of the residents to see if that's the best thing. to do and have an advocate for that conservatory. So I've been in that position many, many times, and I'm there advocating for the conservate. And if the conservatory doesn't want it, that is my job to object to the sale of the property. And a lot of times, you know, the courts have seen this. All of us have seen this many, many times. And sometimes the courts, you know, understand that that's still only the only option is to sell their residence because of sure.

just no other source. The best option, I mean, it's hard to say that to people, but sometimes just safety-wise, I mean, what we went through one case was just heartbreaking for a family member to watch their parents struggle. And it's like, we just move them and they can afford a nice facility, a nice, like an adult senior facility. It looked great. Like I would move in there.

It was nice. But, you know, but again, you know, there's a legitimate concern. You're just, you know, punting me off. You just want to sell the house and pocket the money. and that wasn't the case at all, but it's hard to convey that, I think, you know, in that process. You know, the other thing I see is that by its nature, conservatorships are very public, open, transparent, and then that leads to more things to disagree on. So I know when I used to go to court every day, you know, pre-COVID, I would see hearings

and they were, you know, they would submit accounting. And they say, well, you know, and you know, Betty took so-and-so to McDonald's. And there's the receipt has two hamburgers, but, you know, we're only paying for, you know, mom's hamburger and not for that for the daughter's hamburger. And, you know, and I would watch the court argue for 15 minutes. I'm thinking, well, with all these attorneys here, that just costs like $100. Exactly. The attorney's fees to save $15 on a hamburger.

I know. I know. And everybody could have had a hamburger or two by then. I know. And that's true. But if it wasn't put to that level of scrutiny, and people know that somehow the word gets out, then everybody could be buying hamburgers for everybody and know like, oh, we can fly under the radar. And you're right.

I mean, with, you know, several attorneys there talking about that accounting. That's a lot of money, a lot of fees getting spent. And the purpose is to protect that conservatory and their estate and make sure it's not getting spent inappropriately. Yeah, unfortunately, that kind of thing does happen. If it's very negligible, I've seen everybody agree, okay, let's let that go and let's focus on the big ticket items. But it's also, on the other hand, it's very important to scrutinize all the expenditures that's going on because there have been fiduciaries, whether they're a private, or lay people,

private professionals or lay people that have spent money in an estate, and that shouldn't have been spent. Let's put it that way. And, you know, especially, you know, a lot of press has been out there about more celebrity cases. So you hear about that. And so that's when the public really hears about, you know, what happens in the estate and what got spent and things like that.

You know, one of the nice people. What I've ever met my life was Jay Leno and to see him go to court for conservations for his wife. And you think for all the money, he must have spent for attorneys in his career. I mean, you would think he spent tens of millions of dollars. He must have made hundreds of millions of dollars. So you would think tens of millions of dollars on attorney's fees over various contracts and negotiations and whatever. And to not have a plan that would protect his wife's medical decisions. Like who was not paying attention to that?

It's when I just, and I've met him. He's just the nicest person I've ever met. He's just an amazing guy. Yeah. But this is hard. So this where I close out, I know that part of your practice also is estate planning, avoiding conservations. And so I guess I would say, what are the warning signs?

Because if you don't have a plan, that's bad enough. And anybody can go like that, I guess, theoretically. But, you know, sometimes some of these things are incremental. Health is more incremental. I think sometimes the capacity to, you know, cognitive ability, though there's accidents and so on. What are some of the signs that somebody really needs to think about this? Like, hey, mom's really not on her game now.

And while she doesn't have all that, she's not a, you know, tech billionaire, she has a house. We need to protect your medical decision-making ability. What are some of the signs that you think people need to really think about getting into action and getting a plan put together of some sort? Oh, it's so important to get way ahead of the time where someone starts, you start suspecting, oh, the capacity is diminishing. because once again, the person creating these documents need to have the capacity to retain the attorney to prepare these documents for them.

So the attorney needs to speak with the person creating the documents, and that person needs to tell the, be able to tell the attorney what they want, what they don't want, and things like that. So you don't want to wait until, uh-oh, we think some capacity issues are starting. to crop up, get way ahead of that game. I mean, everybody should have a plan in place. Really, as soon as you become an adult with, I mean, if not anything else, get at least a health care director, power of attorney, if you have nothing to put in the trust. And then if you, once you have a house, for sure, you want to get that living trust in place. because I had a point what was I going to say because it's just you don't know what's going to happen. You could be young and something can happen to you.

So you don't think like, oh, I'm not going to need that. I have many, many years to think about that and, you know, stay plans for older people. And that's not the case because I've had a lot of conservatorship cases where a young person got into, I have a case that I mean, I think he was in his 30s and they got into a car accident. And he became incapacitated and the wife is taking care of him. And they needed a conservatorship. So you want to plan for anything. And being elderly with dementia is not the only reason people become incapacitated.

And I'll tell you that that case with the young person, I mean, that got into a huge litigation. because the parents became involved. There was a fight over who should be conservatorship. There was a wife and a parents and things like that. And so, you know, if you don't have that nomination, because in state planning papers, you nominate who you want to be your conservator. And that will have priority over other people.

And if you don't have that, then there's a fight over who should be it. I mean, there's still a statutory priority of who gets appointed and that people would argue, like, someone's not fit to be it for whatever, reason. But, but, you know, the best thing you could put in place is some sort of plan to so that your wishes are known. And these are legal documents that have effect. So you should put that in place, really, at any time in your adult life. You know, I had a, I was in court one day in the research

room in this couple came up to me and their son had been a motor stock accident. It was in a hospital incapacitated in a coma. And they were from. Japan and of course they didn't have they didn't know about you know a conservorship or you know laws and I'm thinking and the young man had some substantial assets and and they you know they had access to make the right medical decisions they usually didn't know what to do and obviously at that point you need to get an attorney and but it's like what a shame if you just fill out some forms ahead of time they would be able walk in the hospital and make the decisions and um I think you know now I know when I go to the hospital because I'm older I think I'd go

more often to doctors they're very careful to ask about a medical directive I know I'm in the Cedar system and they put it right in your profile if you have it or not. It's really important. And the reason when they ask that, I always feel like they're looking out for themselves, of course, but they're also looking out for me because if I have the directive and it's on file, and they know where it is, then, you know, at least they know who to call and ask questions of. But if you don't have anybody there, it's not pretty.

It's not a good place to be. So, well, look, we've gone for a long time. I know I've taken it a little longer than we'd planned on. So I do want to break to an end. But, Benny, thank you so much for sharing with us. some of the issues on conservatorships as real estate in particular and I think just conservatives

and I think of nothing else hopefully today was a horror story to scare people in getting the state plan even if you don't have a lot of assets get one in order to I think prepare you in case of God forbid

in case of some sort of a medical issue that you're not able to make decisions and that way you'll get somebody else involved so thank you so much if we get a hold of Betty 310-491-0-20-60-2-66 is the focus number and the website we have up there is peninsula.law, P-N-I-N-S-U-L-A dot law, for more information.

But I thank so much for being with us today. Oh, thank you so much for having me. It really is such a pleasure always. I always learn so much for you. Thank you. I really appreciate it. And for those, for the rest of you, this is probably weekly. We get together every week with a new episode talking to attorneys who specialize in

probate, probate, probation, trusts, and this case, conservations, which is part of the probate process. Hope you learned a lot I did. I'd love to get any questions you have, any comments. Feel free to put them in the social media that you're watching or reach out to me at Bill Gross Probate on social media. As always, make today your best day ever. Thanks so much.