How Does Probate Guardianship Work

Legal Article

How Does Probate Guardianship Work

Probate guardianship is a topic that many people will not have to worry about. However, for those with minor children or with friends who will appoint them as a guardian for their minor children, understanding how probate guardianship works is very important.

Probate guardianship happens when the probate court appoints a guardian to another individual. The two situations where this commonly occurs is when a minor or someone experiencing incapacity needs care or someone to look over that individual’s finances.

Below is an overview of probate guardianships, the different kind of guardianships, and other important information related to this topic.

What is a Probate Guardian

The probate court appoints a probate guardian to manage and look after the affairs and finances of a person who is unable to do these tasks themselves. The probate court would appoint a guardian to someone if there are a minor or experience incapacity.

Probate Guardianships of the Person

Guardianship of a person refers to someone other than a child’s parents—or if the person is incapacitated and over 18, someone other than themselves—cares for the child or person’s needs. Further, the probate guardian has the legal authority to act on the person’s behalf and can deal with their medical and other sensitive materials.

There are three distinct reasons why the court may appoint someone a guardian. The first reason is if the person’s parent or caretaker passes away. Secondly, the person’s parent or caretaker becomes incapacitated. Finally, the person is being removed from the parent or caretaker’s care.

Probate Guardianship of the Estate

A guardianship of the estate refers to managing a child or incapacitated person’s assets including income, savings accounts, financial accounts, or real property such as residential or commercial real estate. Guardianship of the estate are most commonly used when a child or incapacitated individual inherits money or another type of asset. Another important note is that guardians of the estate are also commonly known as financial guardians.

If only one of the child or incapacitated individual’s parents die, the probate court will most likely appoint the surviving parent as the guardian of the estate.

Finally, the court will likely appoint the same person to the guardian of the person and guardian of the estate unless a will or other legal document states otherwise. The most common reason why a different person would serve in these roles is if a person inherits a large amount of money or assets.

What Does a Probate Guardian Do

Being appointed as a probate guardian requires a significant commitment from a person as this individual has many of the same responsibilities a parent does. The most common responsibilities for a probate guardian include:

  • Safety and protection
  • Food, clothing, and housing
  • Medical care
  • Physical growth and development
  • Emotional growth and development
  • Education
  • Any other special needs

In most cases, the appointed guardian has limited access to the funds that were left to the child or incapacitated individual. Thus, if the guardian would like to use some of the funds left to the child for the child’s benefit, they must seek approval from the probate court. The reason for this is that guardians typically have to bear the expenses associated with raising a child.

To avoid issues accessing funds for a child, the original parents of a child can create a trust. Further, they can allow a trustee to have specific or limited power over the assets in the trust. Additionally, a trust can specify when a certain amount or individual asset will go to a child. For example, the trust could state that a child will receive a lump sum when they graduate high school. Or pay out a certain amount when the beneficiary buys a home.

You can appoint a guardian for your child in a will. However, naming this guardian as the trustee to trusts you make will allow your child to have access to funds. The reason for this is that a trust does not have to go through probate court. If a person is both the trustee and guardian, the trust could allow a guardian to use trust assets. The trustee could use trust assets for things like non-traditional education expenses.

Who Will the Court Appoint as a Guardian

If the recently deceased named a guardian in their will or other estate planning documents, then the court will appoint the guardian unless a third party finds a legitimate reason to find a new guardian. There are a few common reasons why a court will appoint someone besides the original guardian. These reasons include if the guardian is unavailable, is otherwise unfit, or the will listing the guardian is invalidated.

However, if there is no will or other estate planning documents that name a guardian, the court will appoint a guardian depending on the best interest of the child. The court will usually try to appoint close family and then close friends if no family is available.

Each state has different laws. However, in most states, those over 14 have some say in who their guardian will be. If suitable, the court will give preference to the child’s wishes

How Do you Designate a Guardian

Creating a will designating a guardian is the simplest way to ensure children receive care of if you pass away.

How a Probate Attorney Can Help

Not every family needs to hire a probate attorney after the loss of a loved one. However, because each state has specific laws and procedures tied to probate, finding correct and relevant information is difficult. By hiring a probate attorney, you are enlisting someone with knowledge of the state-specific laws. Furthermore, you will also have someone on your side to help you deal with potential creditors. Finally, a probate attorney will be able to help you distribute the assets in the most tax-efficient way.

Finally, a probate attorney is helpful in assisting with marshaling and valuing all the estate assets, assisting with finishing the accounting, completing the estate tax returns (death tax returns), and overseeing the asset distribution process. Most importantly, however, a probate attorney can asset the personal representative with preparing the initial pleadings to open the estate. A probate attorney can also help to guide the personal representative through their fiduciary obligations and important deadlines.

Contact our law office for more information

For more information on how does a probate guardianship work, contact Antonoplos & Associates at 202-803-5676. You can also directly schedule a consultation with one of our attorneys.