In the context of probate and estate administration, when an infant (defined as a person less than 18 years of age) is to receive more than $10,000.00 as the beneficiary of an estate, a guardian of the infant’s property must be appointed. Although a child’s parents are his natural guardians, they do not have the right to control the child’s property exceeding this $10,000.00 limit.
A petition for guardianship of the property of an infant can be made by any person on behalf of the minor child, although there is an order of preference as to who should serve. Even though parents are often times the first in line to serve as guardian, the standard employed by the Court is always what is in the best interest of the child.
Among other things, the guardianship petition must state the child’s parents, or if the parents are deceased, of the nearest distributee living within the child’s domiciliary, the names and addresses of the person living with the infant, a description of the assets the child is to receive, in addition to any income and property the infant already has and why the proposed guardian is best suited to serve in that capacity.
As with estate administration and probate, jurisdiction must be obtained over all necessary parties, which can either be obtained through the use of waivers and consents or through the service of a citation. Pursuant to SCPA §1705, the following are necessary parties over which jurisdiction must be obtained in a guardianship proceeding:
- The child’s parents, if living, and spouse (if there is one) must be served if those persons are within the state and their residence is known. If no one qualifies under these criteria, then service must be made upon the grandparents who are within the county.
- The person(s) who have care or custody of the child, or with whom the child resides must also be served.
- The infant must be served if he is over the age of 14.
The statute goes on to state that if a person has abandoned the infant, is deprived of civil rights, is divorced from the parent having legal custody of the child, is an incompetent or otherwise judicially deprived of custody of the child, no jurisdiction over that party is necessary.
In determining who should serve as the guardian of the child’s property, the Court will always look to determine what is in the best interest of the child. If there are objections, or two parties are disputing who is best qualified to serve as guardian, the Court can hold a hearing to determine which party is best suited to serve.
Once the petition is filed and any hearings have taken place, the Court will enter a decree appointing the guardian of the infant’s property. Often times, the decree appointing a guardian of the child’s property states that clerk of the Court will have joint control of the bank account into which the infant’s assets are placed. Once the assets are deposited into this account, the guardian cannot remove the assets without further order of the Court. The general rule is that the assets cannot be accessed until the child turns 18. The funds can only be accessed prior to the child turning 18 if his parents/guardian cannot provide for his education and support. In such a case, the guardian must petition the Court in order to obtain the Court’s permission to access the child’s funds.
The guardian of the infant’s property has specific duties and responsibilities with regard to the infant’s property. The guardian is charged with protecting, preserving and managing the infant’s property. Guardians are also bound by the prudent investor standard in managing the infant’s property. Under certain circumstances, the guardian must file an annual accounting with the Court.
The above is a simplified overview of the guardianship process. For a more detailed analysis of guardianships and the duties and responsibilities associated with becoming the guardian of an infant’s property, you should consult with an experienced guardianship attorney.
Do You Need To Speak With A Lawyer About Estate Planning?
If you need to speak with an experienced estate planning lawyer please contact us online or call our our New York City office directly at 212.227.2424 to schedule your free consultation. We proudly serve clients throughout New York and northern New Jersey including Brooklyn, Manhattan, Queens, Staten Island, The Bronx, Nassau County and Westchester County.