Probate and guardianship go hand in hand. The term “probate” is used to refer to the process by which estates are distributed, or disbursements made, following the death of an estate-holder. In short, probate concerns the manner in which estates are prepared and distributed following the death of an owner. There are two main types of probate: civil and criminal. Click here to learn more about probate of wills and guardianship.
Probate court is the primary location for wills and probate related issues. There, a probate court judge presides over estates held under the state laws. Most attorneys who handle probate cases are also estate planning attorneys. This is because the probate court is the place where most last will and testament transactions take place, including that of probate. It is also the place where most guardianship hearings take place.
Anyone considering the probate of their near or distant loved one should hire an estate planning attorney to review the probate court’s actions. An estate planning attorney is well-versed in probate and guardianship law. He or she can advise the client on the appropriate method of filing for probate, and he or she can provide helpful guidance on estate planning throughout the process. However, most estate planners do not handle probate.
The best way for a client to ensure a proper investigation and representation by an estate planning attorney is to ask the attorney to conduct a thorough review of the probate and guardianship matters at hand. Some of the questions to ask include: Did the probate court to order a temporary guardianship? How was the temporary guardianship handled? What role did the guardians have during the process? Did the parents oppose the arrangement?
One of the most common issues regarding guardianship and probate is the question of whether or not the guardian is incapacitated. What is meant by this is whether or not the person is no longer competent enough for making his or her own decisions. If the question of incapacitation is posed, the court will appoint an individual to fill the role of guardian. If the court determines that the individual is competent, then the court will appoint the chosen individual as the probate guardian.
In cases where the person is determined to be incapacitated, then the court will not appoint a probate guardian. This could happen if the individual’s mental faculties are severely impaired or if they can no longer make sound decisions. The court can also appoint a guardian when it determines the individual’s inability to protect his or her own interests. This could be due to extreme poverty, or to some type of medical condition. There are other situations where a guardian is not appointed, such as when the person is under the age of 18, or when he or she does not have the capability to sign documents.
The importance of having a qualified and capable guardian cannot be underestimated. Even though the process may seem difficult at first, once everything is in place and everything is in order, the probate court will handle the probate matters efficiently. If a probate court decides to appoint a probate guardian, then the person will become responsible for the individual’s personal affairs. They will be involved with making funeral arrangements and even providing funds for any debts of the individual. These tasks often take precedent over the wishes of the individual in cases where guardianship has already been appointed.
The responsibility of guardianship can be a daunting one. There is much to consider and do, and it is often best handled by someone who has more knowledge and experience in this area. Once a person is properly and competently appointed as a probate guardian, they will be required to attend counseling sessions. This will help them understand all that is involved in this process, including what to expect when dealing with the probate court, what documentation to prepare and how to make decisions about the affairs of the individual in question. It is always a good idea to discuss these issues with a probate guardian before they become a part of the situation.