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Does an Estate Need a Guardian?

In some cases the probate court appoints a guardian for an estate’s heir to take care of the heir’s affairs and manage his or her assets. A common case is one where the decedent has died and the heir is a minor child or an otherwise legally incapacitated person who stands to inherit from the estate.

When the parent of a minor dies, if the parent had a will, typically he or she names the child’s other parent as guardian. If there is no other parent, the decedent typically names some other person or persons to act as guardian.

Occasionally a parent will designate one person or couple as guardian(s) of the person of his or her minor child, and another person as guardian of the property. This is likely to happen if the decedent feels one person or couple is ideal to raise the children, but not the best person(s) to manage the child’s assets.

If no guardian is named in the will, or if there is no will, the court will choose the guardian, taking into account the best interests of the child. It is always best for all involved if the decedent names a guardian in a will, as the probate judge will try to honor the decedent’s wishes if at all possible.

In many states, judges must follow the stated wishes in the will. In others, the judge makes the final determination based on a number of factors, of which the stated wishes of the decedent are only one.

If the decedent didn’t name a guardian and there is no surviving spouse, it is common for several relatives to come forward requesting to be appointed guardian, all claiming that they are the best person to take care of the minor child or children. In that case, the judge will take input from all sides and make a decision based on the child’s best interests, and, if possible, taking into account the preference of the child.

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