Guardianship and Probate Common Questions and Considerations
Disclaimer: The following FAQ provides general answers to commonly asked questions regarding guardianship and probate intended solely for educational purposes. The answers provide a general understanding and are “generally accurate,” but the guardianship and probate laws vary in each state, so the provided answers may not apply to YOUR specific situation. Nothing provided here is legal advice, nor advice tailored to your situation. You should always consult an attorney licensed in your jurisdiction if you require specific legal advice rather than general educational information.
1. Am I an interested party with legal rights?
Every state is different, but generally, a person is an interested party with legal rights in a case if he or she has some stake in the outcome of the proceedings. Put differently, if the outcome of the case will or could impact you, you are likely an interested party. Some states have laws that spell out who is an interested party for certain types of cases. Notice of legal proceedings must usually be given to interested parties to ensure all interested parties have a right to participate in the proceedings, if needed.
In a probate case, interested parties are typically those parties who have a financial stake in the estate. For example, creditors are interested parties because they have an economic interest in the outcome of probate proceedings. In addition, in most probate cases, anyone listed in the will as a personal representative or beneficiary, and anyone who would be entitled to distribution in the absence of a will, is an interested party.
In a guardianship case, interested parties are typically those parties who have a familial or care giving relationship to the potential ward and those who would stand to inherit money or property, as well as governmental agencies with a financial stake in the outcome of guardianship proceedings. The list of interested parties in a guardianship case is often quite long and may include parents, siblings, children, spouses, caregivers in control of the proposed ward, the Department of Health and Human Services, and the Department of Veterans Affairs. Similar to probate, interested parties in guardianship cases are entitled to notice of the proceedings.
You should always consult an attorney licensed in your state if you are not sure whether you have a legal interest in a probate or guardianship case. An attorney is not required for the process, however.
Learn More
Probate Code Laws & Rules (50 States + DC)
Understanding the Probate Process
Role of Conservator, Guardian, and/or Trustee
Related Frequently Asked Questions
- Question 5: What rights do I have to monitor a trustee or guardian?
- Question 8: How do I challenge a guardian’s claim that actions were taken at the request of the protected person?
- Question 9: What steps can I take to remove a court-appointed trustee or guardian?
- Question 11: How do I work with a court-appointed trustee or guardian?
- Question 12: What must I consider when deciding to file with the courts?
- Question 14: Can I contest the decision of the court?
Commentary from Leonie Rosenstiel
Protecting Mama: Prologue, et passim
Dayspring Empowerment Course, Module 4 Video 2 and Module 6 Video 1 .
2. How is competency determined?
Competency is a person’s mental capacity to make decisions that are consistent with their goals, concerns, and values. A person is not simply “competent” or “incompetent” as to all decisions. There are different types of competency. For example, a person may be competent to execute a will but not competent to manage the payment of their bills for life’s necessities.
Legal competency is determined by a judge based on the type of competency at issue. When considering competence in a guardianship case, a judge typically tries to determine whether, based on the evidence presented, (1) the person possesses a set of goals and values; (2) is able to communicate and understand information; and (3) is able to reason and deliberate regarding his or her decisions. If a person meets these criteria, he or she is generally considered competent. Although the judge is the ultimate decision-maker, he or she must rely on information provided by others to make the decision. Medical opinions are very important pieces of evidence. Testimony of family members or friends can also provide insight into a person’s competency, if the court is willing to consider it.
People are considered competent unless a judge has determined they are not. Competence is also judged on a task-by-task basis. A person may be competent to work but incompetent to live independently. Competence is judged at the time a determination is made. This means a person could be deemed competent at one time, then later be deemed incompetent, and still later be considered competent again. The more common situation, however, is that a person is judged incompetent because of a progressive cognitive decline, such as if the person is suffering from dementia. In such a situation, the guardianship will stay in place for the remainder of the ward’s life. From both a health care and from a financial standpoint, it is not safe to allow such a person to attempt to make his or her own decisions.
Learn More
Probate Code Laws & Rules (50 States + DC)
Role of Conservator, Guardian, and/or Trustee
Related Frequently Asked Questions
- Question 1: Am I an interested party with legal rights?
- Question 14: Can I contest the decision of the court?
Commentary from Leonie Rosenstiel
Protecting Mama Chapter I, Chapter III, Chapter V
Dayspring Empowerment Course, Module 2 Video 2 Video 4, Module 4 Video 2
3. What rights, powers, or limitations does a court-appointed trustee have?
Generally, a trustee is named in the trust document. The document often provides for successor trustees in the event the first trustee cannot or will not serve in the role. Sometimes, however, the trust document does not cover a particular situation and a court must appoint a trustee.
Whether named in the trust document or appointed by a court, a trustee has the powers granted to them by the trust document itself and by state trust law. If the court appoints a commercial guardian, often they will choose to pick someone other than a current trustee to manage the trust, particularly if that current trustee is a family member. A judge generally automatically approves the substitution of a commercial trustee for a family trustee. Usually, family trustees agree to step aside or are persuaded by the judge to step aside in favor of a trustee of the commercial guardian’s choosing.
Common powers granted to trustees are the power to: invest trust property, buy and sell trust assets, make distributions of interest and/or principal to beneficiaries, hire professionals like attorneys and accountants, prepare tax returns, and take other actions required to responsibly administer the trust.
Trustee powers are broad but not unrestricted. Trustee powers are restricted to those that allow them to manage the trust’s assets. Trustees do not have any authority to take non-financial action on behalf of beneficiaries. For example, a trustee may be able to distribute dividends to a beneficiary but cannot decide where a beneficiary will attend college or the type of medical care the beneficiary will get. Additionally, trustees are limited by the terms of the trust instrument. For example, the trust may only allow distributions after beneficiaries have reached a certain age.
Learn More
Probate Code Laws & Rules (50 States + DC)
Role of Conservator, Guardian, and/or Trustee
Related Frequently Asked Questions
- Question 1: Am I an interested party with legal rights?
- Question 4: What rights, powers or limitations does a guardian have?
- Question 11: How do I work with a court-appointed trustee or guardian?
Commentary from Leonie Rosenstiel
Protecting Mama: Prologue, Chapter I, Chapter III-Chapter V
Dayspring Empowerment Course: Rick Black video, James Dory video.
4. What rights, powers or limitations does a guardian have?
A guardian is legally responsible for managing another person’s life affairs because the other person has been determined to be incapable of adequately caring for themselves and their affairs. The person cared for by a guardian is called a ward. Calling a ward, a “protected person” does not change the powers of the guardian. A guardian’s rights, powers, and limitations depend on the type of guardianship, court orders, and state laws.
A guardian may be appointed a guardian of the person, guardian of the estate, or both. The type of guardianship impacts the guardian’s powers. A guardian of the person has the power to manage the ward’s life affairs like their health and social activities. However, he or she cannot control other areas of the ward’s life. For example, he or she cannot invest the ward’s money on the ward’s behalf. Similarly, a guardian of the estate has the power to control the ward’s financial affairs, but cannot control other areas of the ward’s life. For example, a guardian of the estate cannot access or control the ward’s medical records.
Many guardians serve as both the guardian of the person and the estate. However, state law and court orders may limit, and often do limit, the guardian’s actions. The goal of guardianship is to let the ward do as much as possible on their own, with the guardian stepping in only where the ward is not competent to adequately care for themselves. State laws often specify certain actions that guardians simply cannot take. For example, a guardian may not make medical decisions that are inconsistent with the ward’s religious beliefs. Additionally, courts, in theory, can limit a guardian’s authority based on the individual circumstances. While the law provides limits and restrictions, the laws only work if the guardian or trustee is willing to act in good faith and comply with the laws. While the laws provide ways they are enforced, it can be too late to do anything after the fact.
Learn More
Probate Code Laws & Rules (50 States + DC)
Role of Conservator, Guardian, and/or Trustee
Related Frequently Asked Questions
- Question 1: Am I an interested party with legal rights?
- Question 3: What rights, powers, or limitations does a court-appointed trustee have?
- Question 11: How do I work with a court-appointed trustee or guardian?
Commentary from Leonie Rosenstiel
Protecting Mama: Prologue, et passim
5. What rights do I have to monitor a trustee or guardian?
Guardians and trustees both have a lot of power, and their decisions and actions greatly impact the lives of their wards and beneficiaries. To protect the ward or beneficiary, it is important that the power of guardians and trustees does not go unchecked. Fortunately, at least in theory, there are legal ways to check in on what a guardian or trustee is doing to ensure their actions continue to be in accordance with the ward or beneficiary’s best interests as well as the law.
Each state has different guardianship laws that provide parties, like family members, with an interest in the ward's well-being, with different rights. Two of the best ways to stay up to date on what is going on are to visit with the ward and to review guardianship reports. These are great touch points to determine if anything seems improper or “off”. Guardianship reports should not be merely taken at face value. If something seems wrong to you, it is important to bring it to the guardian’s attention and ask for an explanation.
State laws vary, but in general, guardians are encouraged, and sometimes required, to continue to allow the ward to have contact with friends and family. These visits will provide you an opportunity to assess how your loved one is doing, especially if you are allowed unrestricted visitation, without another person present and without any limitations on what may be discussed. Additionally, guardians of all types are required to file reports with the court to provide updates on their actions and the status of the ward. Reviewing these reports will help you monitor the guardian’s conduct. Finally, some states require that family members be notified if there are significant changes in the ward’s condition or circumstances, providing another monitoring touchpoint.
If you believe that your loved one under guardianship is in physical or financial danger because of their guardian’s actions, you should report your suspicions to relevant state authorities. Under the laws of most states, this should trigger enhanced auditing of the guardianship by the state. Additionally, you may petition for removal of the guardian.
Due to their position of power, trustees, like guardians, are subject to many rules that help to ensure that they fulfill their duties. However, trustees’ conduct does not receive even the minimal court oversight many guardians receive. Thus, beneficiaries must take more affirmative action to monitor trustees. One of the best ways to monitor a trustee is to ask them questions. The trustee may not appreciate your questioning, but it is his or her duty to provide you with information. Additionally, beneficiaries can review the annual accountings and other reports provided by the trustee to monitor their actions. If a trustee fails to provide an annual accounting and any other reports the trust requires, beneficiaries can, in theory, file action in court to obtain them.
Learn More
Probate Code Laws & Rules (50 States + DC)
Role of Conservator, Guardian, and/or Trustee
Related Frequently Asked Questions
- Question 1: Am I an interested party with legal rights?
- Question 3: What rights, powers, or limitations does a court-appointed trustee have?
- Question 4: What rights, powers or limitations does a guardian have?
Commentary from Leonie Rosenstiel
Protecting Mama: Chapter I, et passim, including words like “audit”
Dayspring Empowerment Course: Module 1 Video 1, Module 2 Video 3, Module 3 Video 2
6. How do I handle probate issues involving non-court appointed trustees or guardians (i.e., where a family member is the trustee or guardian)?
Some of the most difficult situations involve non-court-appointed trustees or guardians. Usually, the people involved are typically working to ensure your loved one’s best interests are protected but might disagree with the best way of doing this. When communicating your concerns, it is best to start with an open dialogue in which you share these concerns with the guardian or trustee. Try to understand why they might have made a decision you disagree with, and be open to finding an amicable resolution. There are, of course, limits to how far you should go to achieve an amicable resolution. If you think that there is nothing good that will come of further discussion, be prepared to take legal action.
Learn More
Probate Code Laws & Rules (50 States + DC)
Role of Conservator, Guardian, and/or Trustee
Related Frequently Asked Questions
- Question 4: What rights, powers or limitations does a guardian have?
- Question 8: How do I challenge a guardian’s claim that actions were taken at the request of the protected person?
- Question 9: What steps can I take to remove a court-appointed trustee or guardian?
7. What recourse do I have when the monitoring of a trustee or guardian is done by a state agency?
What a guardian or trustee can and cannot do may vary depending on the state. While a state agency may monitor a trustee or guardian, it is still important to have a general understanding of the requirements of trustees or guardians, including their powers and limitations to their powers. All 50 states and the District of Columbia have laws in place that provide for court oversight of a guardian once they have been appointed. However, court procedures for the implementation of these laws may vary greatly from state to state. Courts are also limited in the resources available to them to monitor trustees and guardians. This may lead to less meaningful oversight or to courts relying on the good faith of those with whom they deal regularly.
In the case of trusts, a good place to start is by looking at the trust documents, which contain the duties of the trustee. Trustees must administer the trust according to trust law, but first and foremost, according to the trust document itself. The trust document, in many states, is filed with the court when the petition to appoint the trustee is filed.
In some states, guardians need court approval to do certain things, such as selling any of the ward’s real estate or property, using the ward’s debit card to withdraw funds from the ward’s account, admitting the ward to a long-term care facility, administering certain drugs, or making other medical decisions.
If you suspect that a trustee or guardian has violated their duties, things you can do may include:
- Where possible, get a copy of the annual report and accountings for the ward’s personal status and finances, which many courts require the guardian file. Be aware that if you are not a co-guardian, some states may provide limited access to court documents and records, and, in some instances, the cases may be kept confidential altogether. If there is limited information available, in some cases you may be able to access more information by going to the courthouse in the county where the case is located. An order sequestering the records, however, will effectively cut off all access to the records.
- Keep your own records to the best of your ability. Keep whatever documents you receive for future use.
- To the best of your ability, be aware of whether the ward is still in need of a guardian. If the guardianship is no longer necessary, you may be able to help prove that the rights of the ward can be restored. The decision of whether the ward is still in need of guardianship may depend in part upon the statements and conclusions made by the ward’s treating medical providers, so if you have access to that information, make sure to keep and organize those records for the court that will make the determination about the need for guardianship. This does not apply to a person whose incapacity comes from an irreversible condition, such as progressive dementia.
- Contest the guardianship appointment. Depending on the law of your state, you may be able to ask the court for a motion to set aside the order for guardianship, remove or replace the guardian appointed, or ask the court to end the guardianship. This may require you to hire an attorney who practices in the area of guardianship/conservatorship or who is willing to challenge unlawful or unethical practices that have, unfortunately, become commonplace.
- Be prepared to ask to be the successor guardian and to argue strenuously for your appointment. Some courts do not like to appoint a family member or friend to replace a commercial guardian, but there is no legal requirement that only a commercial guardian may replace a commercial guardian.
- Be aware of other alternatives to guardianship. In cases where you think the guardian should be removed or that guardianship is inappropriate, the court may order a less restrictive alternative. Whether less restrictive alternatives exist or will be chosen depends on the laws of your state and, most importantly, on the condition of the ward. There may be no alternative for a person whose condition is irreversible.
Learn More
Probate Code Laws & Rules (50 States + DC)
Role of Conservator, Guardian, and/or Trustee
Related Frequently Asked Questions
- Question 3: What rights, powers or limitations does a court-appointed trustee have?
- Question 4: What rights, powers or limitations does a guardian have?
- Question 8: How do I challenge a guardian’s claim that actions were taken at the request of the protected person?
Commentary from Leonie Rosenstiel
Protecting Mama: Prologue, et passim
Dayspring Empowerment Course: Module 3 Video 1, Module 3 Video 2, Module 4 Video 1, Module 4 Video 2
8. How do I challenge a guardian’s claim that actions were taken at the request of the protected person?
If you know or fear that the guardian is abusing their power or making medical or other decisions without the consent of the ward or that are not in the ward’s best interests, there are some options you may take. First, you may ask the guardian to step down. If the guardian is indeed abusing their power, stepping down may be more attractive to the guardian than being brought to court.
Second, express your concerns to the ward’s other case workers or case managers, if any. Other case workers may be able to help by documenting your concerns and facilitating the process by which you may contest the actions or appointment of the guardian.
Third, you can petition the court to remove the guardian. Anyone interested in the ward’s welfare can petition the court to end the guardianship. If you petition to end the guardianship arrangement, there should be a hearing where you can state the reasons why you believe the guardianship appointment should end.
While petitioning the court is an available option, it may not be an easy path. There are numerous difficulties with petitioning the court to remove a guardian. First, the court is the entity that appointed the guardian in the first place. Courts are often reluctant to admit making an error in judgment. Second, any evidence of mismanagement is largely in the hands of the guardian. In the case of medical records that will demonstrate a ward’s physical or emotional condition, state and federal privacy laws will restrict access to all but a group of a few select (authorized) people. You may have to rely largely on your own observations to demonstrate a guardian’s unfitness. The court may be able to easily discount your views and testimony to deny your requested relief.
Learn More
Probate Code Laws & Rules (50 States + DC)
Role of Conservator, Guardian, and/or Trustee
Related Frequently Asked Questions
- Question 3: What rights, powers or limitations does a court-appointed trustee have?
- Question 4: What rights, powers or limitations does a guardian have?
- Question 9: What steps can I take to remove a court-appointed trustee or guardian?
Commentary from Leonie Rosenstiel
Protecting Mama: Chapters II-IV (including “values history/ies”)
Dayspring Empowerment Course: Module 1 Video 3, Module 1 Video 5, Module 2 Video 3
9. What steps can I take to remove a court-appointed trustee or guardian?
There are steps you can take to remove a court-appointed guardian. These steps include:
- Ask the Court to undo the guardianship and start over. You may file a Motion to Set Aside the Order that appointed the guardian if you believe the appointment was incorrect or unjust. However, the judge may deny this request if it is based only on the fact that you disagree with the appointment. If you are moving to set aside the order, you must demonstrate to the judge that the order was obtained as a result of fraud, misrepresentation, mistake, "excusable neglect", or misconduct on the part of the guardian who was appointed.
- Ask the court to remove and replace the guardian. If the guardian fails or neglects to perform their duties, mismanages the estate, or is unsuitable to continue their role as guardian for another reason, any person may ask that the guardian be removed. The judge will ultimately decide whether there are legal grounds to remove the guardian. Keep in mind that the court will want to appoint a successor guardian if they remove that guardian, so if you wish to fill that role, be prepared to make a case that you would be more suitable as guardian than any other guardian the court could appoint
- Ask the court to end the guardianship. In rare instances, it may be the case that the ward is no longer in need of a guardian as their condition or circumstances that originally required the appointment of a guardian have changed. However, you should think very carefully before trying to end a guardianship. Releasing a ward from all supervision could be very dangerous to them.
Learn More
Probate Code Laws & Rules (50 States + DC)
Role of Conservator, Guardian, and/or Trustee
Related Frequently Asked Questions
- Question 3: What rights, powers or limitations does a court-appointed trustee have?
- Question 4: What rights, powers or limitations does a guardian have?
- Question 8: How do I challenge a guardian’s claim that actions were taken at the request of the protected person?
Commentary from Leonie Rosenstiel
Protecting Mama: Chapters III-V
10. When may I want to work with a court-appointed trustee or guardian?
Caring for our loved ones in their time of need is a concern many of us share. However, we also have financial, energy, time, and other practical limitations. This means that sometimes, the best way to care for a loved one who needs some or complete assistance in caring may seem to be allowing someone else to step in and help. A court-appointed guardian and/or trustee could be this person.
The strongest reason many families consider working with a court-appointed guardian or trustee is because no family member has the ability to manage a loved one’s life and finances. Parents of a severely disabled adult child, for example, may not be able to manage the child’s 24-hour needs while also managing their own professional and personal lives. Or, parents of a minor child may not feel capable of managing a large sum of money the child received in a lawsuit. Or, an out-of-state adult child may not be able to have the physical presence needed to serve as their parent’s guardian.
While many families seek a guardianship or conservatorship out of good motives, many guardians and trustees do not have such benign intentions. Too many use a court order granting them control over another person’s affairs as a license to steal. For example, in 2017, federal investigators charged the owner of a “non-profit” trust company with stealing $4.8 million from approximately 70 clients over the course of at least seven years. The owner plead guilty and was sentenced to eight to twelve years in prison and ordered to pay restitution. In another New Mexico case, federal authorities closed a trust company after its owners were indicted on 28 counts of conspiracy, fraud, theft and money laundering, arising out of an scheme to embezzle funds from client trust accounts managed by their company. The owners were ultimately sentenced to lengthy prison terms.
Prosecutions of dishonest trustees and guardians are rare, but that should not be taken as meaning that their crimes are rare. The law grants the guardians or custodians appointed by the courts a great deal of discretion in dealing with the affairs of a ward. While the law also grants the courts the power to oversee how a guardian or custodian exercises this discretion, courts are often unwilling to exercise that oversight in a meaningful way, or they simply lack the resources or bandwidth to do so. Given the broad powers and authority granted to a court-appointed guardian or trustee, it is strongly recommended that you consult with an independent third party such as an attorney that can help you decide if challenging the guardian or trustee is the best option.
You should also be prepared to closely monitor the actions of the guardian or trustee, to make sure they are complying with the legal requirements for their position (such as filing periodic reports and accountings). You should also pay attention to whether the court-appointed guardian or trustee is acting in the best interest of your loved one and not denying them basic rights (such as medical care or visits from loved ones).
Learn More
Probate Code Laws & Rules (50 States + DC)
Role of Conservator, Guardian, and/or Trustee
Related Frequently Asked Questions
- Question 3: What rights, powers, or limitations does a court-appointed trustee have?
- Question 4: What rights, powers or limitations does a guardian have?
- Question 5: What rights do I have to monitor a trustee or guardian?
Commentary from Leonie Rosenstiel
Protecting Mama: Chapter I, et passim
Dayspring Empowerment Course: Module 4 Video 2, Module 4 Video 4
11. How do I work with a court-appointed trustee or guardian?
If the court has appointed a guardian or trustee for a loved one, you may be wondering how to work with that trustee or guardian to help ensure your loved one’s best interests are protected. The best way to work with a court-appointed guardian or trustee is to communicate. Find out what is going on, and learn what you can be doing.
Guardians and trustees are legally required to act in the best interests of the ward or beneficiary. However, in many cases, you, as a friend or family member, may know more about the ward or beneficiary’s values, desires, and wishes. Share these with the guardian or trustee to help them make decisions that align with the beneficiary’s interests.
Too many guardians and trustees, however, do not appreciate getting input. They may see it as criticism of their expertise or performance, or they may simply resent being subject to scrutiny. This should not dissuade you from attempting to work with the guardian or trustee.
It can be tempting to run to court to request changes or demand removal of a guardian or trustee if you do not agree with an action they take. Before you do, talk directly to the trustee or guardian to try to resolve the issue. While a particular action or decision may appear to be negligent or even wrongdoing on the part of the guardian or trustee, it could also have resulted from a misunderstanding. It could also have been some action required by law or court order. Trying to resolve the issue amicably before going to court can save time, money, and emotional energy.
The cost of repeated trips to court may discourage those who disagree with a guardian’s actions from filing complaints. Judges have also been known to lecture litigants who show up what they consider to be “too often” in “their” hearing room. Some of those actions objectionable to interested parties might be the result of miscommunication or of the guardian following a court order, while others might truly be negligent or otherwise improper. If a disagreement can be solved through discussion or counseling or mediation (if permitted in your state), these options might prove less harmful in the long run.
Finally, if in doubt, ask questions. Most trustees and guardians are described as well-meaning by most media and attorneys, and are encouraged by professional guidance or standards to communicate with interested parties and respond to questions.
Learn More
Probate Code Laws & Rules (50 States + DC)
Role of Conservator, Guardian, and/or Trustee
Related Frequently Asked Questions
- Question 1: Am I an interested party with legal rights?
- Question 3: What rights, powers, or limitations does a court-appointed trustee have?
- Question 12: What must I consider when deciding to file with the courts?
- Question 14: Can I contest the decision of the court?
Commentary from Leonie Rosenstiel
12. What must I consider when deciding whether to file a probate action with the courts?
You should consider the steps of the probate process. The probate process and timeline may vary according to your state; however, generally, the steps of the probate process are:
- Filing a petition to begin probate.
- Giving notice to all creditors, beneficiaries, heirs, and in some states, publish in the newspaper, the fact that the estate is in probate.
- Doing an inventory of the assets and have an appraisal done for the assets, including bank accounts, retirement accounts, stocks and bonds, real estate, and personal effects.
- Collection of money owed to the estate, such as outstanding rents and checks, and payment of bills, debts, and taxes.
- Distribution of the remaining assets after all claims, debts, and expenses are paid.
- Closing the estate, which requires the submission of records and receipts to the court, after which you may ask to be released as executor of the estate.
Other considerations for you to keep in mind include:
- Your choice of an attorney: Choosing the right attorney who specifically practices in the area of probate may be extremely helpful to you when filing with the court. A good attorney skilled in this area of law will be able to help you effectively navigate the laws in your state and possibly obtain the outcome you desire.
- The appropriate forms and documentation: If you have an attorney, they can help you make sure the correct forms for your state and case are selected and help with the completion of the correct forms. Your attorney can also help advise you on what documentation is needed and help make sure that all the necessary documentation is filed.
- The importance of preparing for the hearing: There are three main things you need to do to prepare for a hearing: (1) pull together the things you need to bring; (2) dress appropriately; and (3) plan out your route and schedule so that you are on time. If you do these three things are setting yourself up for a successful court appearance. Additionally, if your attorney has asked you to do anything else before the hearing, make sure you do that too. Common requests include asking you to sign a document or having you come into your attorney’s office to practice answering questions. These, and other requests from your attorney, are designed to help prepare you for court and obtain a successful outcome.
- Emergency requests may be available: On occasion, matters arise that require immediate consideration by the judge. In these situations, emergency requests can be submitted. If the judge agrees that the matter is urgent, the issue will essentially be bumped to the front of the line and heard almost immediately. However, emergency requests should be submitted cautiously. If the issue is not a true emergency, the judge may cancel the hearing and will not look favorably on the party that submitted the improper request. Examples of true emergencies that require expedited processing of a probate petition or hearing on a probate issue include:
- Estate real property is threatened with foreclosure.
- Funeral expenses cannot be paid because there is no access to the accounts.
- A will is in the safety deposit box and no one has the key or authority to access it.
- The estate has been sued and must respond.
- Any other situations that pose a high risk of substantial, irreparable harm to a person or property if not dealt with immediately.
Learn More
Probate Code Laws & Rules (50 States + DC)
Related Frequently Asked Questions
- Question 1: Am I an interested party with legal rights?
- Question 8: How do I challenge a guardian’s claim that actions were taken at the request of the protected person?
- Question 9: What steps can I take to remove a court-appointed trustee or guardian?
Commentary from Leonie Rosenstiel
13. How do courts determine whether an action constitutes negligence or fraud?
Negligence and fraud are two different types of legal claims. Each has its own requirements. One of the key differences between them is the mental state required. Fraud claims require that the person in the wrong acted intentionally, while simple negligence only requires that the person acted unreasonably under the circumstances.
To decipher whether an action is fraud or negligence, it is helpful to understand the requirements of each type of claim. To succeed on a fraud claim, you must generally establish: (1) that the person you are bringing the claim against represented that a fact was true; (2) that the person knew that the representation was false; (3) that you relied on the misrepresentation; and (4) the misrepresentation caused you harm. In a probate action, knowingly presenting a forged document (such as a phony will) to the court is an example of fraudulent action.
To succeed on a negligence claim, you must generally establish: (1) that the person you are bringing the claim against owed you some type of duty; (2) that he or she breached that duty; (3) that the breach caused harm. In a probate action, an executor’s inadvertent mismanagement of estate assets (even if inadvertent or unintentional) is an example of negligent action.
Even though fraud and negligence have different requirements, they can sometimes be brought for the same action. This approach is called pleading in the alternative, which effectively says that if one claim does not apply, the other does. For example, in some cases, you may not be able to prove the intentional mindset needed for a fraud claim but could prove the requirements of a negligence claim.
Learn More
Probate Code Laws & Rules (50 States + DC)
Understanding the Probate Process
Related Frequently Asked Questions
- Question 1: Am I an interested party with legal rights?
- Question 8: How do I challenge a guardian’s claim that actions were taken at the request of the protected person?
- Question 9: What steps can I take to remove a court-appointed trustee or guardian?
Commentary from Leonie Rosenstiel
Protecting Mama: Chapters III-V
Dayspring Empowerment Course: Module 1 Video 3, Module 2 Video 2, Module 5 Video 4
14. Can I contest the decision of the court?
The short answer is yes, you may contest a final judgment of the court. One of the first rules to learn is that appeals may not be taken from interlocutory orders entered in the probate process. “Interlocutory” is legalese for an intermediate order, something non-final in the disposition of the estate. In order to appeal a decision from this stage of proceedings, a party has to wait until a decision from the court regarding an issue is final.
The decision to appeal a court’s order should not be made lightly. Appeals are both costly and time-consuming. Once the judgment from your probate case is entered (or signed by the judge), you typically have 21 days from the date that the judgment was entered to file a claim of appeal. That is, you have 21 days to file a notice and other required documents with the higher courts that you are appealing a case. The timeline for appeals is strict and not forgiving, so you need to make your decision quickly. If you think there is any likelihood you might actually want to file an appeal, you should have an attorney already lined up to do it, and he or she should advise you as to the deadlines and requirements, including fees and other expected costs.
Once the appeal has been initiated, the next step is to draft and file an appellate brief that explains to the higher court the reason(s) why you disagree with the decision of the court, and the legal basis of your disagreement. Given the complexity of appellate briefs, it is often recommended that you hire an attorney (if you have not yet done so). Once the brief is filed, the opposing side has five weeks to file a responsive brief. Once all briefs are filed, it can be anywhere from a year to two years before the appeals court reviews your case and sets a date for oral argument on the issue.
Learn More
Probate Code Laws & Rules (50 States + DC)
Understanding the Probate Process
Related Frequently Asked Questions
- Question 1: Am I an interested party with legal rights?
- Question 8: How do I challenge a guardian’s claim that actions were taken at the request of the protected person?
- Question 9: What steps can I take to remove a court-appointed trustee or guardian?
Commentary from Leonie Rosenstiel
Protecting Mama: Chapters III-V
Dayspring Empowerment Course: Module 4 Video 3, Module 6 Video 4, Module 6 Video 5
Dayspring Empowerment Summit: Brett Darken video, Rick Black video, Alexandra Snyder video
15. How should I prepare for my day in court?
During your probate or guardianship case, you may need to come into court one or more times. There may be occasions where you do very little other than just sit and observe. On other occasions, you may have to answer questions under oath. Whether your court appearance is involved or minor, it can be intimidating. Fortunately, there are some things you can do to prepare that will have you feeling more confident and improve the likelihood of getting the outcome you want.
Knowing what to expect means you know what the purpose of the court appearance is and what your role is. Your attorney should explain this to you ahead of time and should also tell you what you need to do to prepare, and what to bring to court. Follow your attorney’s instructions; he or she knows what to do and it will help you obtain the best outcome. If you are not represented by an attorney, review the documents you have received from the court regarding the upcoming court date. The documents often provide information about the type of proceeding and what your responsibilities are.
In addition, your preparation for court should include planning out a court appropriate outfit. You should wear a nice, conservative outfit to court similar to what you would wear to a religious ceremony or business event. For women, a skirt, dress, or pants with a blouse works well. For men, dress pants with a collared shirt, and ideally a tie, works well. Avoid hats, low-hanging pants, tank tops, revealing clothing, and sandals.
You should also plan out your travel to the courthouse ahead of time to ensure you are early. Judges do not look favorably on parties who are late. In addition to the time required to get to the courthouse, you should allot an extra 20 – 30 minutes to ensure you have time to find parking, walk to and enter the courthouse, and find the assigned courtroom. Many courthouses are large and it could take 10-minutes just to get to the courtroom from where you entered the courthouse.
Learn More
Probate Code Laws & Rules (50 States + DC)
Related Frequently Asked Questions
- Question 1: Am I an interested party with legal rights?
- Question 8: How do I challenge a guardian’s claim that actions were taken at the request of the protected person?
- Question 9: What steps can I take to remove a court-appointed trustee or guardian?
Commentary from Leonie Rosenstiel
16. What resources are available to help guide me in the probate process?
By visiting this page, you are already accessing one of the thousands of resources available to you as you walk through the probate process. Actively seeking out as much information as you can at the outset will help you immensely, as it will allow you to be better prepared to meet with an attorney, compile your probate materials, and present your case in front of a judge.
Most court websites include a resources section for individuals looking to learn more. For example, Florida Courts provide an overview of their process and related forms, as well as links to the relevant statutes and regulations that may apply to your probate case. Similarly, New Mexico Courts provide a summary of 1) the role of the court, 2) the timeline and fees applicable to probate proceedings, and 3) the process for opening a probate case.
When you are ready to file your case, hiring attorneys, accountants, and other professionals to help you through the probate process will often be the best decision you can make because they become your best resource. When you hire professionals, they do most of the technical work and may help to keep track of the deadlines for you, allowing you to focus on the rest of your life with peace of mind that things are being done, and done right.
Learn More
Probate Code Laws & Rules (50 States + DC)
Understanding the Probate Process
Related Frequently Asked Questions
- Question 1: Am I an interested party with legal rights?
- Question 8: How do I challenge a guardian’s claim that actions were taken at the request of the protected person?
- Question 14: Can I contest the decision of the court?
17. Do I have to go through probate?
When someone passes away (a “decedent”), the first thought that often comes to mind is probate. Upon death, the property and other assets an individual leaves behind are called their estate. The purpose of probate is to provide a formal legal process to administer the decedent’s estate. In other words, probate exists to distribute a decedent’s assets and pay off their creditors, if any. Not all estates need to go through probate.
Estates need to go through probate if they include probate assets. Probate assets are assets that are owned solely by the decedent at his or her death, such as a house listed only in the decedent’s name or a bank account with no co-owner and no “payable on death” provision. If there are no probate assets, an estate does not need to go through probate. Non-probate assets are assets that pass directly to heirs, for example, jointly-owned bank accounts.
The key question to determine whether probate is needed is what type of assets and how they are owned, not whether there is a will. If a will exists, probate is likely needed but not always. For example, sometimes a decedent has a will, but at the time of his or her death only has non-probate assets. In this case, probate is not required, but the will still needs to be filed with the court. Similarly, if someone dies without a will, it does not mean probate is not required. In fact, probate will be required unless the decedent only had non-probate assets at his or her death. State laws called “intestacy statutes,” provide default rules that control how the assets and property are distributed when there is no will.
Probate has gotten a bad reputation as being time consuming and expensive. Sometimes it is, but other times, it is a relatively quick and inexpensive process of distributing a decedent’s assets. Some states offer an expedited probate process for small estates. They generally require smaller filing fees and move more quickly through the process. Check the rules in your jurisdiction to see if the estate you are dealing with qualifies, or consult with an attorney who practices in the probate court in your state.
When someone passes away, even if you do not have to go through probate, that does not mean you do not need to take any action. For example, if you are the joint owner of a bank account with someone who has passed away, you will need to notify the bank of his or her death and provide a certified copy of the death certificate to get the decedent’s name off the account.
Learn More
Probate Code Laws & Rules (50 States + DC)
Understanding the Probate Process
Related Frequently Asked Questions
- Question 18: How do I probate an estate?
- Question 19: What items are/ are not subject to probate?
- Question 20: What is the difference between a will and a trust for purposes of probate?
Commentary from Leonie Rosenstiel
Protecting Mama: Chapter I, Chapters III-V
Dayspring Empowerment Course: Module 2 Videos 2-4, Module 6 Videos 4-5
18. How do I probate an estate?
Probating an estate is a multi-step legal process to administer the estate – i.e., distribute the assets and pay the liabilities of someone that has passed away. The first step is to determine if probate is needed. Sometimes, a decedent has provided for their assets to be distributed outside of probate, for example, through the use of trusts and/or jointly titled accounts. An attorney or legal self-help guide in your state can help you decide whether probate is required.
If probate is needed, you start the legal process by filing a formal request to start probate proceedings with the court. This request is called a Petition for Probate in most states. If there is a will, you will typically file it with the Petition for Probate. After the case is started, the will is authenticated, which means it is proven to be the true and correct will of the decedent, not a forgery or a superseded version. Then, an executor is appointed and granted legal authority to administer the estate
If you are the executor, you are responsible for managing the movement of the case through probate, but you can hire professionals such as accountants and attorneys to help you through the process. One of the executor’s first roles is to provide notice of the probate action to all interested parties. Interested parties in a probate case typically include family members, creditors, and anyone named in the will.
After notice is given, the executor must inventory all of the decedent’s assets and liabilities. Whether this is quick and easy or difficult depends on how many assets and debts the decedent left behind and how easy they are to find. Once there is a handle on what the decedent owned and owed, the executor pays off the decedent’s debts. The executor will also file tax returns and pay any taxes owed by either the decedent or the estate.
After debt and tax payment, any remaining assets are distributed based on the instructions in the decedent’s will. If there is no will, state intestacy laws provide default rules for how to distribute the remaining assets. Once distributions are made, the final step is to close out the probate court case. In some states, a lack of action in a probate case for a stated period of time results in the case being “administratively” closed. Therefore, if nothing has happened for a while, it would be wise to check whether the case is still technically open.
You can probate an estate yourself, however, it is usually advisable to hire an attorney to help you. Someone with legal experience will help you avoid common pitfalls that can result in delays and extra work in the process. Fortunately, most attorneys charge less for smaller estates. Sometimes the staff at the local probate court are very helpful in walking an executor or executrix through the process, however, they are not able to give legal advice if you need it.
Learn More
Probate Code Laws & Rules (50 States + DC)
How to Initiate Probate Proceedings
Related Frequently Asked Questions
- Question 17: Do I have to go through probate?
- Question 19: What items are/ are not subject to probate?
- Question 20: What is the difference between a will and a trust for purposes of probate?
Commentary from Leonie Rosenstiel
Protecting Mama: Chapter I, et passim
Dayspring Empowerment Course: Module 2 Videos 2-4, Module 6 Videos 4-5
19. What items are/are not subject to probate?
When someone passes away, his or her assets can generally be divided into two categories: probate assets and non-probate assets. Probates are assets that must go through a formal legal process, called probate, before they can be distributed. Non-probate assets are assets that can be transferred or are automatically transferred without going through the probate process. You can think of them as bypassing probate.
All assets that are held solely in the decedent’s name without a beneficiary are probate assets. Probate assets are distributed in accordance with the directions set out in the decedent’s will or, if there is no will, with the directions set forth in the state’s intestacy statute. Common examples of probate assets are:
- Real estate titled solely in decedent’s name or held as tenants in common;
- Vehicles and watercraft titled solely in the decedent’s name;
- Banking and investment accounts with no listed beneficiary and no “payable on death” or “transfer on death” designation; and
- Investment accounts held solely in the name of the decedent with no beneficiary listed.
Assets that have joint owners, beneficiaries, or which are either owned by a trust or list a trust as a beneficiary, are non-probate assets. Non-probate assets are distributed in accordance with their title, beneficiary designation, or terms. For example, the proceeds of a life insurance policy that lists the surviving spouse as the beneficiary will be given to the surviving spouse. Common examples of non-probate assets are:
- Real estate held in joint tenancy or as tenants by the entirety
- Life insurance proceeds
- Banking and investment accounts with payable on death or transfer on death designations
- Real and personal property held in a living trust
- Household goods, in some states
Learn More
Probate Code Laws & Rules (50 States + DC)
Understanding the Probate Process
How to Initiate Probate Proceedings
Related Frequently Asked Questions
- Question 17: Do I have to go through probate?
- Question 18: How do I probate an estate?
- Question 20: What is the difference between a will and a trust for purposes of probate?
Commentary from Leonie Rosenstiel
Dayspring Empowerment Course: Module 2 Videos 2-4, Module 6 Videos 4-5
20. What is the difference between a will and a trust for purposes of probate?
Wills and trusts are often referred to together because they are both estate planning tools. However, they are quite different tools and have different impacts on the probate process. At death, a person may have a will, a trust, or potentially, both.
A will is a written document in which a person, called the testator, lays out what he or she wants to happen to their property when he or she passes away, as well as who he or she wants to be in charge of administering their estate. Wills can be short and simple or long and complex. They can make gifts ranging from personal property like heirlooms to cash distributions to transfers of real estate. Wills do not become effective until the testator passes away.
A trust is also a written legal document, but it has a different structure and impact than a will. A trust transfers ownership of property to one or more trustees who manage the trust property for the benefit of beneficiaries. Unlike a will, a trust becomes effective immediately. It also continues to exist after a person passes away. Revocable living trusts are a common type of trust used in estate planning.
The key difference between wills and trusts for probate purposes is whether probate is required. When someone passes away with a will, going through probate is almost always required. In contrast, if someone uses a trust to dispose of assets at his or her death, probate is not required unless the decedent also has probate assets that are not covered by the trust. For large estates, avoiding probate can save time, legal expense, and help the estate avoid estate taxes.
Learn More
Probate Code Laws & Rules (50 States + DC)
Understanding the Probate Process
How to Initiate Probate Proceedings
Related Frequently Asked Questions
- Question 2: Do I have to go through probate?
- Question 3: How do I probate an estate?
- Question 4: What items are/ are not subject to probate?
Commentary from Leonie Rosenstiel
Protecting Mama: Prologue, et passim
Dayspring Empowerment Course: Module 2 Videos 2-4, Module 6 Videos 4-5
21. What if other parties do not agree with the handling of the estate by the executor?
It is not uncommon for interested parties in a probate proceeding to disagree with how the executor handles the administration of the estate. Complaints generally fall into one of two categories: (1) issues with particular decisions made by the executor; and (2) issues with interested parties objecting to the specific person who is serving as the executor. In both situations, the disagreeing parties have recourse.
If other parties disagree with a particular decision or action by the executor, they can challenge that action in court. If the action is proposed but not carried out, the parties can file an opposition to the action in court and let the judge decide. If the action has already been taken, the parties can file a motion seeking to reverse the executor’s action. As a practical matter, decisions are often harder to reverse than to prevent.
If other parties disagree with the executor continuing in that role, they can file a motion with the court seeking to have the executor removed. To succeed, there must be a valid legal reason for removal. Simply not liking an executor is not enough to get them removed. Common reasons for seeking to have an executor removed include:
- Executor does not meet the legal requirements to serve as an executor.
- Executor no longer meets the requirements for serving, for example, because he or she has become incapacitated.
- Misappropriation of funds by executor.
- Negligent management of the estate’s assets.
- Recurring non-compliance with the terms of the will or with the judge’s orders.
- Executor has a conflict of interest.
Before taking court action and creating a probate dispute, parties should carefully think about the situation and, ideally, consult with an impartial, knowledgeable third party such as an estate attorney or mediator. Disagreement with an executor’s actions does not always warrant reversal of the decision or removal of the executor. It is not uncommon for the real underlying issue to be disagreement with the decedent’s decisions. An executor cannot be removed and is not acting improperly by carrying out the instructions in the decedent’s will, even if parties do not like them.
Learn More
Probate Code Laws & Rules (50 States + DC)
Related Frequently Asked Questions
- Question 17: Do I have to go through probate?
- Question 18: How do I probate an estate?
- Question 19: What items are/ are not subject to probate?
Commentary from Leonie Rosenstiel
Dayspring Empowerment Course: Module 4 Videos 2-4, Module 6 Videos 4-5
Dayspring Empowerment Summit: Rick Black video, Brett Darken video, James Dory video
Last Updated May 2022