Probate & Guardianships
Probate is a court supervised proceeding in which a decedent's assets are collected and protected, creditors are paid or addressed and distributions to appropriate beneficiaries are made. Probate is typically necessary when an individual passes away holding assets titled in his or her name alone, with no beneficiary or survivorship designations noted. Whether or not an individual has a Will is not the determining factor when deciding if probate is necessary; rather, it is the title of how a particular asset is held. The probate process can take anywhere from four months to as long as several years depending upon the complexity of issues, types and locations of assets and family dynamics.
Guardianships are also court supervised proceedings in which an individual (known as the "Ward") is alleged to be (typically by a family member) incapacitated and no longer capable of managing his or her own healthcare or finances. It is an intrusive and often expensive proceeding. Once the allegation of incapacity is made, an examining committee is appointed by the court to visit with the Ward and determine if it is in the best interest of the Ward that the court appoint a full time guardian over the Ward's person and property. Often times guardianships are contested, especially when there is disagreement as to the appropriate person to be named guardian. Generally, once the court determines an individual is incapacitated, a guardian is appointed, assets become restricted and the guardian becomes a fiduciary charged with preparing annual accountings