Guardians for Minors

silouette of father playing{Read in 4 minutes}  Unfortunately, people die. This very closely affects the family of the deceased and, of course, greatly affects the children of the deceased. When those children are minors, there are several important legal issues that will come up, aside from what the minors may inherit, like whether the deceased died without a Will or they are beneficiaries under a Will. The issue will arise as to whether or not the Surrogate’s Court may need to entertain a Petition to appoint a Guardian for the benefit of these minors.

When might this be necessary? It may be necessary in a number of circumstances: 

– If after the death of the parent in question, the minor no longer has a living parent (i.e., they are now an orphan), a party may petition the Surrogate’s Court to become that child’s legal Guardian. In this situation, the Surrogate’s Court has concurrent jurisdiction with the Family Court, which means that either Court can receive an application and decide the issues, and can appoint a Guardian of both the minor’s person and property. This will be necessary for things like enrolling the child in school, adding the child to the Guardian’s family health insurance plan, or making medical decisions on behalf of the child.

– Regardless of whether or not this minor has a living parent, the Court may need to appoint a Guardian when the minor inherits a large sum of money. Under New York State law, if a minor inherits less than $10,000, the Executor or Administrator may pay the money to the minor’s parent directly. However, if the minor receives more than $10,000, the minor’s parent will need to petition the Surrogate’s Court to become the legal Guardian of their own child. This surprises many people since parents are what we call the “natural guardians” of their children, and have certain rights over their children and their well being. The right to manage large sums of money, however, is not among them. So, when a child inherits these large sums of money, one or both parents may need to go into Court and ask for an Order appointing them as the legal Guardian of the property belonging to their own children. This may become necessary if a child is a beneficiary and has funds forthcoming. 

Sometimes it becomes necessary for the Court to appoint a Guardian of the person and property of a minor who no longer has any living parents. In this situation, the Court will notify all of that child’s nearest living relatives, by issuing a Citation alerting them that this issue is pending before the Court. Sometimes relatives from both sides of the family will come forward and the Court will have a full hearing on who is best suited to become that child’s legal Guardian.

Whenever I’m meeting with a new client, or clients, who are parents, I always make sure to take extra time to discuss issues surrounding what happens with their children if both parents were to die before the child reaches the age of majority. Like anything else, this is a case where a little bit of extra planning goes a long way, and can prevent some problems and legal expenses down the road.

For more information on this topic, please contact me.

Thomas Sciacca

 

Thomas Sciacca

www.sciaccalaw.com
Tom@SciaccaLaw.com
(212) 495-0317