BY ROBERT J. SHANAHAN, JR. ESQ.
Generally, a court order creating a guardianship for an incapacitated person terminates upon the death of the ward. The guardian is relieved of his or her responsibilities as guardian and may not take any further action with regard to the ward.
Exceptions to the Law
However, as nearly everywhere in the law, there are exceptions:
N.J.S.A. 3B:12-60: Upon the death of the ward, the guardian must:
- Deliver to the appropriate court (County Surrogate) for safekeeping any will in the guardian’s possession
- Inform the executor or a beneficiary named in the will that he/she has done so
- Retain the estate for delivery to the duly appointed personal representative of the deceased ward, or other persons entitled to the estate
The order appointing the guardian requires the guardian to notify the county surrogate. This should be done in writing immediately with a copy of the death certificate.
N.J.S.A. 3B:12-61: If no one has been appointed as personal representative (executor or administrator) of the estate, within forty days of the date of death, and if there is no suit filed with respect to that issue, the former guardian may apply for the job.
N.J.S.A. 3B:12-64: Termination of the guardianship does not affect the guardian’s liability for prior acts, nor his obligation to account for funds and assets of the ward.
N.J.S.A. 3B:18-28: In addition to an annual commission, a guardian is entitled to a commission on termination of the guardianship. See subparagraphs a, b, c and d for the amount.
There are things that will come up which are not covered by statute, but may fall within the guardian’s duties if no one else assumes the duty. For example:
- Funeral. Is there a pre-paid burial plan?
- Notify any family members. If none, carry out your ward’s wishes.
- Prepare a final accounting and apply to the court for its approval, and to be relieved as guardian.
Hunterdon County New Jersey: if your ward is on Medicaid, no final accounting or application to be relieved as guardian is necessary, as long as you notified the surrogate of the ward’s death.
© Shanahan & Voigt, LLC 2014
BE ADVISED that these comments are not legal opinions and are not to be relied upon as legal advice. If you need legal advice, contact your county bar association; most of which have referral services.