Smart Law Blog

A probate guardianship is set up when a child is living with an adult who is not the child’s parent, and the adult needs a court order to make decisions on behalf of the child. Typically, probate guardianships are for children that are under 18 years of age. Regarding immigrant youth who are seeking special immigrant juvenile status, the law allows a guardianship of the person to be requested (or extended) for those who are already 18 but still under 21.

A guardianship is not the same as an adoption. In a guardianship, parents still have rights and can still ask to have some type of contact with the child. Also, a court can end the guardianship of a child if the child’s parents become able to take care of the child. Alternatively, in the case of an adoption, the parent’s right are permanently ended and the child’s legal relationship with the adoptive parent or parents is permanent and the same as a birth family.

There are two types of probate guardianships, “Guardianship of the person” and “Guardianship of the estate.” In a guardianship of the person, the guardian provides care for the child as a parent would. Here, the guardian has full legal and physical custody of the child and can make all decisions about the physical care of the child that a birth parent would make. In a guardianship of the person, the guardian is also be responsible for supervision of the child and may be liable for any damage the child may cause.

On the other hand, a guardianship of the estate is set up to manage a child’s income, money, or other property until the child turns 18. Here, a child may need a guardian of the estate if the child inherits assets or money. In many cases, the court will appoint a surviving parent to be the guardian of the child’s estate. Also, in some cases the same person can be the guardian of the person and of the estate. In other types of cases, the court will appoint a separate person for each type of guardianship. The guardian of the estate is responsible for managing the child’s money, making smart investments, and carefully managing the child’s property.

A person who creates an estate plan, which will typically include a “will” and a “trust,” will appoint an executor. Generally, the executor is responsible for administrating the will and trust upon the death of the person who created the estate plan.

An executor generally must ensure that the requirements of a will are properly administrated. Here, the executor cannot do anything that goes against the requirements of the will. The executor must also not do anything that will negatively impact a beneficiary of the estate plan.

What the specific duties of the executor will be largely depends on the estate that the executor is required to work with. For example, if the will provides that certain property should be sold with the proceeds of the sale going to certain beneficiaries, the executor will need to sell the property and distribute the proceeds of the sale to the beneficiaries as described in the will.

Some specific things an executor may have to do may include hiring a probate lawyer, identify the deceased person’s assets and liabilities, give notice to heirs or interested parties, including creditors, pay any debts using the assets of the estate, manage a will contest from a potential beneficiary, and distribute property or money to heirs.

Finally, a request can be made, and is commonly made, to the probate court to compensate the executor for completing duties as an executor. This compensation typically comes from the estate assets.

Being an executor of an estate can be very serious depending on the nature of the estate. Here, it is important to work with an experienced probate attorney and ensure that mismanagement does not occur. If you have been named as an executor, contact SmartLaw to find a qualified and experienced probate attorney in your area.