Can a Guardian Initiate a Probate Proceeding When the Ward Dies?

Question:     I was the guardian for a ward who has recently died.  Can I petition to open a probate proceeding and be appointed personal representative also?

Answer:    Usually, the named personal representative in the decedent’s will is the one who initiates the probate proceeding.  The guardian, who typically will have all of the deceased’s personal records, would normally notify all the family members and the personal representative designee upon the ward’s death.  However, sometimes the decedent dies intestate (without a will) or the designated personal representative is unable to serve.  The guardian is considered an “interested person” under the Florida Probate Code for the purposes of commencing probate proceedings and can open the probate.  The guardian may be required to commence the probate proceedings to transfer the guardianship assets to the probate estate.  However, there could be some cases where the guardian’s appointment as personal representative of the ward’s estate is inappropriate.  For example, if a conflict of interest existed between the ward and the guardian prior to the death of the ward, then the court may be inclined to appoint a guardian ad litem, an administrator ad litem, or a different personal representative all together.  If you are the guardian for a recently deceased ward or want to petition to be appointed the personal representative for a deceased ward, contact Bach & Jacobs to schedule an appointment with one of our attorneys.