Walston-Dunham, chapter 11 6th ed
1. What is probate? Probate courts not only deal with the distribution of assets of the deceased, but with the control and distribution of assets of others. What others?
a. Probate is a legal process that takes place after someone dies. It includes:
i. proving in court that a deceased person's will is valid (usually a routine matter) ii. identifying and inventorying the deceased person's property iii. having the property appraised iv. paying debts and taxes, and
v. distributing the remaining property as the will (or state law, if there's no will) directs.
2. What is a guardian ad litem? Under what circumstances would one be appointed?
a. A Guardian ad Litem is a volunteer appointed by the court to protect the rights and advocate the best interests of a child involved in a court proceeding. The volunteer Guardian ad Litem makes independent recommendations to the court by focusing on the needs of each child. The Guardian ad Litem advocates for the best interests of the child they represent.
b. Cases in which children are under the supervision of the Department of Children and Family, and involved in court proceedings require a Guardian ad Litem.
3. When a guardian is appointed for an individual, what is he or she required to do periodically?
a. Once appointed, the guardian of person is charged with the daily care, maintenance, and support of the ward. The guardian must provide, or contract to provide for, the ward’s housing, meals, administration of medication, and health care. These services and expenses are paid for from the ward’s own funds; the guardian is not expected to pay for these items from the guardian’s personal funds. The guardian must help and support the ward—the guardian should not make the ward do anything against his or her own will and should attempt to gain the ward’s cooperation if possible and practicable. In some jurisdictions, the guardian may want to formally petition the court when faced with major decisions such as whether to place the ward in a nursing home or consent to certain medical treatments. Prior court approval will help ensure the guardian does not face any additional caregiver liability besides the guardianship obligations imposed by the probate court. Most states require a periodic report to the court by the guardian on the ward’s health and well-being, as well as a report from a medical professional indicating whether a guardianship continues to be necessary. The court, upon its own motion or motion by the ward, may terminate guardianship of person if the ward regains the ability to care for his or her person. If a guardian of estate was also appointed for the older person, the court may continue the guardianship of estate so as to best manage the guardianship assets. During the course of a guardianship of estate, the guardian must apply to the court for permission prior to spending the ward’s funds. The guardian must also follow any rules in his or her jurisdiction regarding prudent investment of the ward’s funds. The guardian is required to make periodic accountings to the court for funds received and expenses paid on behalf of the ward from the ward’s funds. The guardian must continually show the court that all decisions on the ward’s behalf are in the ward’s best interests, not merely convenient for the guardian, and that all funds are spent on the ward. The guardian must use the ward’s funds to maintain the ward at a standard of living consistent with the size of the ward’s estate and that adequately meets the ward’s medical and other needs.
4. Some persons die intestate. What doe this mean? One consequence of dying intestate is a per capita distribution of assets. What is the initial task if there is per capita distribution? And, how is the estate distributed? Most states distribute assets in intestate matters in a manner called per stirpes. Explain per stirpes distribution. But,