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.
Question: Does a guardianship end when the ward dies? If so, what are the guardian’s responsibilities upon the ward’s death?
Answer: Yes, a guardianship is terminated when the ward dies. A guardian of the person is discharged upon the death of the ward after filing a death certificate. A guardian of the property is also discharged when the ward dies. However, the guardian must first file a final report, including an accounting, and petition for discharge for court approval before the discharge is granted. The guardian seeking discharge needs to know the requirements of filing the report and the petition. For example, the Florida Probate Rules require notice of the report and petition to be served on certain interested parties. 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 discuss your matter and receive assistance.
Question: What is a guardianship?
Answer: Guardianship is a process by which a court appoints someone to protect the health and financial security of an incompetent or incapacitated individual who is no longer able to adequately take care of some or all of either their activities of daily living or their finances or both. If you are concerned that someone you care about is no longer able to handle some or all of their personal care or finances, call Bach & Jacobs to discuss whether a guardianship or another lesser restrictive alternative may be an appropriate option.
Bach & Jacobs, P.A. is pleased to announce that Sean M. Byrne will be joining the firm this summer.
Mr. Byrne’s practice focuses on trust & estate planning, probate, guardianship, and elder law litigation. Mr. Byrne begins with Bach & Jacobs on July 22. Prior to joining Bach & Jacobs, Sean was the in-house counsel for the Conservation Foundation of the Gulf Coast where he provided options to landowners, high net worth individuals, and their financial advisors seeking to reduce federal income taxes and local property taxes through land conservation and philanthropy. Sean will continue to represent parties to real estate transactions involving environmentally sensitive lands.
Mr. Byrne is a member of the Florida Bar, the American Bar Association, the Southwest Florida Estate Planning Counsel, the Sarasota County Bar Association and the Young Lawyers Division. He is a graduate of Leadership Sarasota County and is the founder of the nationwide Next Generation Conservation Attorneys network, currently sponsored by the national Land Trust Alliance.
“Sean combines a sharp legal mind and a diligent work ethic with his genuine concern for senior citizens and their families. He will be an outstanding addition to our strong team of professionals who put our clients’ interests at the heart of everything we do,” said Babette B. Bach, founder of Bach & Jacobs and a Board certified attorney by both the Florida Bar and the National Academy of Elder Law Attorneys (CELA).
Bach & Jacobs practices estate planning, probate, guardianships, tax and business law, Medicaid, VA benefits and land conservation transactions.
Sean M. Byrne can be reached at (941) 906-1231 or at [email protected].
We represent legal guardians in establishing guardianships of person and/or property for minors as well as incompetent adults, pre-need planning for guardians, and complying with annual reporting and accounting requirements.
Fred: One of the situations that we frequently become involved in is when a client will come into the office and say, “my dad is elderly, my mother passed away several years ago. Dad is not fully in charge of his faculties, he’s going on the internet every night and meeting unwholesome women and we are concerned that he is going to give away or dispose of a lot of his money to these people. We really think that he ought to be protected against that. Is there anything that you can do for us?”
Babette: If you do advance planning and you’ve got a good power of attorney, then you’ve designated who can handle your affairs for you if you are incapacitated. Very often that completely awards guardianship. But if you haven’t, and you become incapacitated, your family or your loved ones have an obligation to go to court to protect you, both in terms of great access to medical care and the best medical attention you can possibly get, as well as in terms of preserving your assets. One of the fields in which I am an expert as an elder law attorney is in the field of guardianship. We try to avoid litigation at all costs. It’s not always possible but if you do need to litigate, we have the experience.
Fred: Frequently, the financial affairs of such persons are in a total state of disarray. They may not have filed income tax returns for the last five years, they don’t know where their assets are, they don’t know how they are held. One of the things I can do in assisting Babette is to straighten out to the extent possible the financial affairs of the person who is somewhat diminished in capacity.
Babette: Both Fred and I have litigation experience, and unfortunately in elder law, even with good planning, sometimes you end up in court. Fred: The typical case is a gentleman passes away, and leaves substantially all of his assets to a person or persons other than his natural beneficiaries, and by natural beneficiaries we mean typically the children of the decedent. Many times, people, particularly elderly people, come under the influence of persons and are induced to leave portions of their estate to those persons. In many cases the elderly person did not fully realize what he or she was doing. In a typical case, someone will come into the office and say, “my goodness, this is my dad’s will. I hardly know this person! how could he have possibly left so much to so-and-so? Can you do anything about this?” And at that point, Babette takes over.
Babette: On the other hand, there are times when an elderly person knows exactly what they’re doing, and they intentionally disinherit an heir. We can get very involved in preparing that case for litigation, even while the testator is alive and preparing the will, because we anticipate that it might be contested at a later date and so we develop the case right then and there on the spot. Unfortunately, that’s not always the case, but we believe in a person’s right to leave their estate to who they choose. That is one of the liberties we have in the United States and in the Florida Constitution. In protecting the elderly that means protecting their freedom of choice. Not every state is the same.
Fred: In those types of situations, we will frequently videotape the person who is making the will. We will record the signing of the will, we will ask that person questions like, “who you are? Do you understand what you’re doing? Who are your beneficiaries? What is the nature and extent of your financial assets? How come you’re not leaving so much to so-and-so and how come you’re making a bequest to so-and-so?”
In other words, we have it all on tape, and when the person dies and if there is litigation, the judge and the jury and everyone else can see the person who prepared the will while they were alive, and can make a determination of whether they feel that person was competent, and they also hear right out of the person’s own mouth why they are or are not doing a certain thing with regard to the disposition of their assets. We have found that that videotaping can be very persuasive in a court of law.
