How does a guardianship affect New York probate actions?

New York – November 28, 2020

New York probate can be complex without the assistance of an experienced probate attorney, specifically when individuals die without first preparing a last will, as well as those who died with a will document when guardianships are in play.  Article 81 of the New York Mental Hygiene Law provides the procedures and requirements regarding guardianship for an incapacitated person.  The statute allows for the appointment of a guardian for property management and/or personal needs and may affect probate action if the person dies during the guardianship.


A guardian is an individual, or institution such as a bank trust department or non-profit corporation appointed by a court to care for an incapacitated person commonly referred to as a “ward.” Elder guardianship is one option when an individual has not appointed a formal power of attorney for health care, or finances, but needs someone to oversee their affairs when they become temporarily, or permanently incapacitated because of aging, illness and/or disability. A guardianship is a legal proceeding in the court system where a guardian is appointed to exercise the legal rights of an incapacitated person.  Guardians are accountable for any action taken on behalf of a ward. It is common for a guardian to provide a bond, and meet court-approved training program requirements of the state.  If a guardian is not carrying out their prescribed duties, they may be removed from that position by the court.  Negative issues may crop up during probate if an individual dies while under a nefarious guardianship.   Attorney Ron Meyers can answer questions regarding this type of situation.

Probate conflicts.

Undue influence and elder abuse may result from contested wills regarding asset disposition in New York.  Poor planning causes disputes that could be avoided with estate planning.  Creating plans to include living wills, power of attorney, health care proxies and last will and testaments reduces conflicts of interest, and disputes between named beneficiaries of an estate belonging to a person who has a placed guardianship at the time of death.  A New York Probate attorney can assist individuals with questions and concerns regarding any negative effects a guardianship may have on the timely probate of a person’s will in New York.

Estate plan importance.

The importance of consultation with legal professionals surrounding preemptive measures to be incorporated into estate plans that will allow for a smooth probate administration in New York cannot be overstated.  Once a person makes their intentions known for end-of-life decisions and estate distribution, disputes may be kept at a minimum.  An estate planning attorney can be of assistance in this regard.

Hire an attorney.

Disputes can often occur between named beneficiaries and executors of estates, but when a guardianship is encountered, disputes may be more complex.  Contact Attorney Ron Meyers with questions regarding the possible effects of a guardianship on smooth probate administration in New York Surrogate Court.

 Ron L. Meyers & Associates, PLLC

Address:  475 Park Avenue South, Suite 2100

Manhattan, NY 10016

Phone: 212-644-8787




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