Pursuant to §744.521, F.S., the guardianship ends when the ward dies. See, Fla. Pro. R. 5.680(a). Since the guardian’s authority over the assets of a ward terminates upon the ward’s death, the assets then become assets of the decedent’s estate and are subject to the authority of the estate’s personal representative. See Batzle v. Baraso, 776 So.2d 1107 (Fla. 5th DCA 2001); In re Guardianship of Jensen, 834 So.2d 376 (Fla. 2d DCA 2003). Upon the ward’s death, the proper procedure is for the personal representative to retain the decedent’s assets and pay the estate and guardianship administration expenses through the estate account.

For example, in Batzle v. Baraso, 776 So. 2d 1107 (Fla. 5th DCA 2001), after the ward died, the guardian incurred legal fees and other expenses in terminating the guardianship and petitioned the guardianship court for payment of those expenses. The court held that those expenses were properly expenses of the estate and should have been handled through the estate. The court criticized the guardian for wanting to use the guise of the guardianship proceedings to circumvent the probate court’s oversight as to claims and other administration issues of the estate. “This results in a delay in the administration of the estate and in two Florida courts effectively competing for jurisdiction over the decedent/ward’s assets.” Id. at 1109. See also, Stabinski v. Meyer, Weiss, Rose, Arkin, Shampanier, Ziegler & Barash, P.A., 439 So. 2d 330 (Fla. 3d DCA 1983)(an estate may be charged attorney’s fees where services rendered were for the benefit and protection of the guardian).

A guardian of the person is discharged upon the filing of a certified copy of the ward’s death certificate. See, Fla. Prob. R. 5.680(a). However, a guardian of the property may not be discharged and the guardianship terminated until all of the administration expenses of the guardianship estate have been paid, the guardian has delivered a complete and accurate final report to the court, all objections to the final report are resolved, and the guardian has delivered the assets of the ward to the person entitled to them. See, Fla. Prob. R. 5.680(g) and §§744.528 and 744.531, F.S.

How does a guardian of the property protect himself so that he has sufficient funds available to finalize the guardianship without having to petition the probate court for payment?

Pursuant to § 744.527(2), F.S., if the ward has died, the guardian applying for discharge may retain from the funds in his or her possession a sufficient amount to pay the final costs of administration, including guardian and attorney’s fees accruing between the filing of his or her final returns and the order of discharge.

What “funds” can a guardian retain post-death to pay the final costs of administration? This question was answered, in part, in Romano v Goldberg, 2014 Fla. App. LEXIS 3464; 39 Fla. L. Weekly D 515 (Fla. 4th DCA March 12, 2014) where the court held that the death of the ward did not terminate the guardian’s access to the ward’s brokerage account held jointly with the ward’s estranged spouse. The court reasoned:

It is true that ownership of the account passed to Irene upon the Ward’s death, but Chapter 744 requires a guardian of property to perform tasks related to the guardianship after the death of the ward. Along with these post-death obligations, the Guardian retained “possession” of the account within the meaning of section 744.527(2) for the purpose of winding up the guardianship. It is as if Chapter 744 created a tacit equitable lien on a survivorship account to pay legitimate expenses of the guardianship.

Chapter 744 contemplates that a guardian will perform services and be able to access the guardianship estate even after the death of the ward. The guardian of property is not discharged upon the ward’s death, but must continue the administration until a petition for discharge is granted and his or her final accounting is approved. See § 744.531, Fla. Stat. (2012). Section 744.441(16), Florida Statutes (2012), allows a guardian, with court approval, to pay “reasonable funeral, interment, and grave marker expenses for the ward from the ward’s estate, up to a maximum of $6,000.” Upon applying for discharge, the guardian may also “retain from the funds in his or her possession a sufficient amount to pay the final costs of administration, including guardian and attorney’s fees regardless of the death of the ward, accruing between the filing of his or her final returns and the order of discharge.” § 744.527(2), Fla. Stat. (2012); Fla. Prob. R. 5.680(b)(3). The trial court was therefore authorized to approve the Guardian’s request for payments from the Oppenheimer Account.

If the ward’s death rendered a survivorship account inaccessible to a guardian of property, then serving as a guardian or the guardian’s attorney would be a risky financial proposition. Many wards are in frail health and a guardian’s compensation should not require a race to the courthouse to secure a court order prior to a ward’s death. Severe restrictions on access to survivorship accounts that are part of the guardianship estate would deter many qualified persons from serving as guardians, a result contrary to the public purpose of protecting wards Chapter 744 should be construed liberally to ensure a compensation framework that encourages competent, qualified guardians to serve. See § 744.1012, Fla. Stat. (2012).