Tag Archives: guardianship

6 estate planning lessons we can learn from James Gandolfini

James GandolfinoEverybody thinks celebrities have teams of lawyers that help them protect their assets and ensure that their affairs are in perfect order.  This is not always true.  In fact, many people don’t know the lessons that are included in this About.com blog by Julie Garber.  And they are lessons that, if not learned, can cost your family time, money and public exposure after you die.

James Gandolfini, who died in June, is used as an example of these 6 estate planning  lessons.  It’s important that you read about these lessons and be sure that you have protected your estate.  If you don’t, your loved ones may be caught up in a public probate process that will cost them a great deal of time and money.

For more about probate, what it is and how you can avoid it, go to www.diesmart.com.


Have you collected the Social Security benefits to which you may be entitled?

You worked hard your whole life and paid money into the Social Security program evey month. So did your spouse. And now that you are both retired, you are relaxing, enjoying life and collecting a benefit check every month.

But Social Security benefits are not just for retirement. They are for widows and widowers, too. That’s right. Some of the money you paid into Social Security during your working life goes to survivor’s insurance from which you may one day be entitled to collect benefits. The amount of those benefits is based on lifetime earnings.

It is important to know that the surviving spouse is not the only one who can collect benefits. Surviving minor or disabled children are eligible as well.

Diesmart has received questions from widows and widowers who want to be sure they have collected all of the pension benefits to which they are entitled. However, they usually either forget or don’t know that they are leaving money on the table when they don’t file for Social Security survivor benefits as well.

Don’t forget to contact the Social Security administration to find out what steps you need to take to collect benefits to which you are entitled. www.ssa.gov/survivorplan/ifyou.htm

For more information about death benefits, go to www.diesmart.com.

Minor children: Property management

It’s important to understand what happens to money you leave to your minor children and how to avoid potential pitfalls.

A Last Will and Testament

  • If you leave money to your minor children via your will, a guardian will need to be appointed by the probate court to manage the funds.
  • Depending upon the size of the inheritance, the courts may govern how the money ought to be invested.
  • When the child becomes an adult, at age 18 or 21 depending upon state rules, the child becomes the owner of all the assets.

A Living Trust or A Testamentary Trust

  • If you leave money to your minor children via your trust, your trustee will manage the trust assets for the benefit of your minor children according to the instructions you include in the trust.
  • These instructions can include the age at which you want your children to have access and control of the funds.  For instance, you can give a child access to 1/3 of their inheritance at age 25, 1/3 at age 30 and 1/3 at age 35.

Guardian of the person: Minor child

A guardian of the person has day-to-day responsibility for your minor children, assuming the role of a substitute parent when you die.

Q. How is the guardian of the person appointed?
A.When you die, someone must petition the court to be appointed as the guardian of the person.  You have the right to nominate a guardian of the person to take care of your children when you die.  The court will normally defer to that person as the guardian of the person and the guardian of the estate.  However, other individuals have the right to petition the court to serve in these roles.  If this should happen, the court will examine who best will protect the interests of the minor(s) and appoint that person as guardian.

If you don’t nominate a guardian, the court will do it for you, according to state rules of preferences.  A surviving parent usually comes first, followed by grandparents, if neither parent is alive.

Fact: Surviving parent rights
If one parent dies, the surviving parent continues to have the right to take personal care of minor children.

When a divorced or single parent dies, the court generally appoints the surviving parent as guardian of the person for a minor or disabled child, even if the deceased parent would have been opposed to that.



If someone believes you are not able to manage your own affairs, they have the right to petition the court and ask the court appoint someone referred to as a conservator to manage your legal and personal affairs.

  • If you have set up a living trust, a co trustee or successor trustee has the inherent right to manage your property on your behalf with no intervention of the court.   If you haven’t set up a living trust, a spouse may learn they do not have the legal authority legal authority to buy or sell property without you designating that he or she is your attorney-in-fact.
  • If your children need to act as a caregiver, your children may not be able to manage your money without you designating them as your attorney-in-fact.
  • If you are not married, your partner will generally not have the legal right to manage your financial affairs unless you have completed a power of attorney naming your partner as your attorney-in-fact.

In the absence of any such advance directive from you giving someone the power to manage your money and property for you, a spouse, child, attorney, other relative or loved one must begin a legal process known as a Conservatorship with the probate court.

Q. What happens when a conservatorship case is filed?

A. Conservatorship is a judicial process whereby the probate court appoints a person, referred to as a conservator, to hold and protect your personal and financial rights.

The purpose of the conservatorship process is to have the probate court appoint someone and give them legal authority to make financial decisions and/or personal care decisions on your behalf.  Some states call this process a Guardianship, as the person appointed to take care of a mentally incompetent adult has duties similar to those of a guardian for a minor or disabled child.

Attorneys often refer to the conservatorship process as living probate, because the probate courts become involved in managing your affairs while you are living.

The conservatorship process is a two-part procedure.

Step 1: Someone, usually a spouse or an adult child, must file documents with the courts requesting you be declared incapable of managing your personal or business affairs.

When a conservatorship action is filed, it must be served on all interested parties.  The court will set a time for an evidentiary hearing.  At the hearing, testimony will be given by friends and medical professionals regarding your physical and mental health.  You may be present at the hearing and the judge may ask you questions to establish your incompetence.

After hearing the evidence, the court may deem you mentally incompetent and/or unable to care for your own basic personal and financial protection.

Step 2: After the court agrees you are incapable of managing your own affairs, your spouse or some other third party will request that they be appointed as conservator.

More than one party may apply to serve as your conservator.  If there is more than one person who seeks to be appointed conservator, state preference laws give higher priority to the appointment based on their relation to you. For example, if you are married, the preference is for your spouse.  If you are not married, the next priority is usually your parents.  Other interested parties, including members of your family, have the right to contest a request to act as your conservator.

The person appointed to act on your behalf, referred to as the conservator, is required by law to provide to the court an accounting of how they manage and spend your money.  The conservator can charge a fee for performing these duties.  All legal, accounting and court fees are paid for from assets owned by you, the conservatee.

A Family Story: Living Probate: Contested Conservatorship.

Matt and Emma, a married couple, owned a restaurant together.  Matt had been married before; he had one daughter from that marriage, Jessica, age 28.

Matt, at the age of 57, suffered a stroke, from which he suffered major brain damage rendering him incapable to walk, talk or think rationally.  Matt’s doctors concluded his condition was permanent. Emma decided to sell his business and take care of Matt.

Matt had not prepared a durable power of attorney.  No one had the legal authority to sign any documents authorizing the sale of the business.

Emma met with her lawyer.  The lawyer explained the need to file for a conservatorship over Matt.

Emma filed documents requesting the court declare Matt incompetent and for her to be appointed as the conservator.  The court scheduled a time to hear testimony from Matt’s doctors. Emma and Jessica attended the hearings.  The judge agreed Matt was incompetent and needed someone to make decisions on his behalf.

Jessica contested the appointment of Emma as the conservator and filed documents alleging such a choice would put Jessica’s inheritance at risk.

After a lengthy, expensive, public legal procedure, the court appointed a financial institution as the conservator of the estate for Matt.  This financial institution will receive a fee for managing Matt’s affairs, money which will come from Matt’s income. The court appointed Emma the conservator of the person for Matt.

All of the documents filed with the courts regarding Matt’s physical condition and his finances are public information.

Just when Matt needs the support of both Emma and Jessica, they are not talking to each other.  Matt could have executed a power of attorney naming Jessica and Emma as co-attorneys-in-fact, requiring both signatures on financial decisions.  This simple document would have likely eliminated costly legal proceedings and the management of Matt’s financial affairs by someone Jessica and Emma have never met.


Q. Can you prevent your financial or health care information filed with the courts from being public?

A. Documents filed with the courts as part of a Conservatorship procedure are generally public records.  Anyone can visit a probate court or go on line and review most of these documents.


Q. Why should you complete a Pre-Need Conservator form?

A. Sometimes, whether you like it or not, someone may file documents with the probate court requesting the courts appoint a conservator to act on your behalf.  Anyone is entitled to seek to have you conserved or to have a guardian appointed for you.

If the court decides that you do, in fact, need to be conserved and if you have previously completed a pre-need guardian form which designated a person who you trust to serve as your conservator or guardian, the court will give first priority to that person in its appointment.  If you have not prepared a pre-need guardian form, the courts may appoint someone you would not want making financial and health care choices for you.

FACT: Pre-Need Guardian for minor children.

If you have minor children, you should also complete a Pre-Need Guardian form designating someone you want to become your children’s guardian, in case you ever become incapacitated.  This document may not deny a natural parent their right to be a custodian, but single parents should definitely complete this form.