Probate and Guardianship

Probate Proceedings

Probate is the legal process to settle an estate in the Surrogate’s Court of the decedent’s county of residence.  The Court will issue Letters Testamentary providing the Executor with legal authority to act on behalf of the estate.

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Guardianship is a legal arrangement where a court gives a person the legal right to make decisions for another Perron who is unable to make decisions for themselves such as a child, an incapacitated adult, or someone who is developmentally disabled.

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Probate Proceedings

Probate is the formal legal process that provides recognition to a will and appoints the Executor who will administer the estate and distribute assets to the intended beneficiaries.  Most probate proceedings are neither expensive nor prolonged, which is contrary to the claims of many vendors selling living trusts and other online and standard form products.

The basic job of administration and accounting for assets must be completed whether the estate is handled by an executor in probate or whether probate is avoided because all assets were transferred to a living trust during lifetime or jointly owned.  In planning your estate it is more important to minimize the real issues, such as lawsuits by heirs, that can make probate difficult than it is to avid probate all together.  The living trust, commonly known as the revocable trust, is often marketed as a vehicle that allows you to avoid probate upon passing.  Many types of property routinely pass outside of the probate process, even without the cost of establishing a living trust.  Examples include, but are not limited to, life insurance or retirement plan proceeds, which pass to a named beneficiary by designation rather than

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specific bequest in your will.  Real estate or back or brokerage accounts held in joint names with right of survivorship are other common examples.  Everyone has unique goals and circumstances and it is extremely important to execute the proper instruments to ensure your legacy meets your wishes.  We take a personal approach to listen and develop estate plans that meet your desires.  Contact us today for a free consultation to discuss how we may assist you to ensure your wishes are carried out without burdening your heirs.


An Incapacitated Person (AIP) is someone who needs assistance to care for themselves or manage their property or financial affairs.  This kind of guardianship case is brought in Supreme Court or County Court under Article 81 of the Mental Hygiene Law.  An Article 81 Guardianship is a very individualized and specific to what decisions are made by the guardian and what decisions are made by the person with the disability.  The Judge will appoint a court evaluator.  As the eyes and ears of the Court, the court evaluator will meet with the possible inacpacitated individual, investigate and report whether or not a guardian should be appointed and, if so, what powers the guardian should have.  The Court will always hold a hearing.  Generally, it is best if a lawyer handles this kind of guardianship case.

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Types of Guardianship:

  • Guardian of the person
  • Guardian of the property
  • Guardian of the person and property
  • Guardian ad litem
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A guardian of the person can make life decisions for the ward like health care, education, and welfare decisions.  A guardian of the property handles decisions about the ward’s money, investments and savings directed by a Judge.  A guardian of the property must file an annual report about the property.  A combination of the two, is the guardian of the person and property—this type of guardian has responsibility of both the ward’s life decisions and property.  A guardian ad litem is assigned by a Judge to act for a person during a court case when they cannot defend their rights or protect their own interests.

In a Guardianship, one person has the legal right to make a binding decision for another person.  In essence, you as the applicant are stating that your loved one does not have the cognitive or communicative capacity to make decisions for themselves and/ or  are unable give informed consent for personal, medical, or financial affairs.  Courts generally rule towards the least intrusive means.  It is important to demonstrate in pleadings that less intrusive means were attempted but failed to provide adequate resources to provide to the physical and financial well being of the proposed ward.  Contact us for a free consultation to discuss your matter.

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Let us put our experience and passion for the law to work for you!  Contact us today to schedule a free consultation to discuss your legal needs and goals.  We offer evening appointments flexible around your work schedule and take payment by credit card, cash and/ or check.

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