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Updated on
July 3, 2020
Article written by
Attorney Kevin O'Flaherty

In this article we answer the question of how a guardian administers a deceased ward’s estate, including:

  • If I am a guardian is it illegal for me to touch the ward’s assets after the ward dies?
  • What does an administrator to collect do?
  • Does a guardian need to file a petition for letters of administration to collect in probate court?
  • What are letters testamentary and letters of administration?
  • What if another party files a petition for letters testamentary or of administration?

If I am a guardian is it illegal for me to touch the ward’s assets after the ward dies?

When someone is appointed guardian of the estate, that person manages the finances and pays bills for the ward. A ward is the minor child or a legally disabled adult. The guardian of the estate is responsible for the care, management, and investment of the estate of a disabled adult or minor child. When a ward dies, the guardian is given the powers and duties of an administrator to collect. These powers usually last for thirty days unless the court discharges the administrator to collect before the thirty-day period ends.

What does an administrator to collect do?

The administrator to collect has power to sue for and collect the personal estate and debts due the deceased ward. An administrator to collect may file suit on behalf of the deceased ward’s estate. In addition, the administrator to collect has authority over sales, mortgages, and leasing of real and personal property. The guardian does not have to get a court order to act as administrator to collect. The administrator acts in that capacity until discharged by a court. Usually, the administrator to collect is discharged when probate court issues letters testamentary or letters of administration.

Does a guardian need to file a petition for letters of administration to collect in probate court?

A petition for letters of administration to collect may be filed by a guardian or a court may issue them without a petition being filed. The court issues letters of administration to collect without a petition being filed when there is a risk that delay could cause waste, loss, or embezzlement of the estate. If thirty days have passed since the death of the ward, or if the court has directed the guardian to do so, the guardian should petition in probate court for letters testamentary or of administration.

What are letters testamentary and letters of administration?

Letters testamentary are issued when the ward had a will and the guardian was named in the will as an executor. The guardian then files a petition for the court to accept the will and name the guardian as executor. Letters of administration are issued when the ward did not have a will, but the guardian files a petition with the court to open an estate for the deceased ward and name the guardian as administrator. On the issuance of letters testamentary or of administration by a court, the powers of an administrator to collect end.

What if another party files a petition for letters testamentary or of administration?

Sometimes someone else will file a petition for letters testamentary or letters of administration. If another party has a petition pending before that court, the court has to hear the other person’s petition first. The court may grant or deny the other person’s petition. If letters testamentary or of administration have already been issued to another party before the guardian files a petition in probate court, letters may not be issued to the guardian. The person who was already appointed by the judge will remain as executor or administrator.

If you have additional questions about how a guardian administers a deceased ward’s estate, or need the help of an experienced probate and estate administration attorney, give us a call at 630-324-6666.

Author

Attorney Kevin O'Flaherty

Kevin O’Flaherty is a graduate of the University of Iowa and Chicago-Kent College of Law. He has experience in litigation, estate planning, bankruptcy, real estate, and comprehensive business representation.

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