Differences Between a Trustee & a Guardian in New York

By Heather Frances J.D.

If both parents of a minor child die, that child will need someone to take care of him until he becomes an adult, and he will need someone to manage any money or property he inherited. In New York, the child would likely live with a guardian who is appointed to care for him, while a guardian -- or a trustee manages his money or property.


A trustee is the manager of a trust account, frequently one established for the benefit of children whose parents have died. Such trust accounts can be set up in a parent’s will to protect the child’s assets until the child reaches a certain age, also established in the will. Since New York’s Estates, Powers and Trusts Code allows a trust to be created for any legal purpose, there can be a wide variation in the structure and purpose of each trust.

Appointment and Removal of a Trustee

A trustee is appointed in the documents that create the trust. Trustees have broad authority to operate without heavy court supervision, as long as they are operating within the structure created by the trust’s governing documents, including buying or selling property in the name of the trust. However, if the trustee does not act appropriately in accordance with the terms of the trust, the trust's beneficiaries can ask the court to remove him by court order.

Ready to start your LLC? Start an LLC Online Now

Guardians for Children

New York’s laws on guardians are found in section 81 of New York’s Domestic Relations Code. There are two types of guardians; New York allows the same person to act as both -- guardians over the person of the child and guardians over the property of the child. The child will live with the guardian over the person, much like a substitute parent, but the guardian over the property manages the child’s assets. Unlike trustees, guardians over the property of a child are heavily supervised by the New York courts, and must file annual reports and request permission from the court when spending the child’s money in an unusual way. If you appoint a guardian for your child in your will, the guardian will not have any authority to act until your will is admitted to probate.

Guardians for Adults

A guardian may also be needed for an incapacitated adult, such as someone with severe dementia, but the process is more complicated and requires a special court proceeding. In such cases, a petition must be filed with the New York court and notice of the case must be provided to the adult’s family members. The court will appoint an evaluator to investigate the situation then hold a hearing to determine whether a guardian should be appointed and who that person should be. A guardian of an incapacitated adult is usually required to post a bond and is supervised by the court.

Ready to start your LLC? Start an LLC Online Now
The Difference Between a Guardian & Trustee in Texas


Related articles

Rights of a Legal Guardian if the Child Is a Trust Beneficiary

Estate planning becomes more complicated when young children are involved. Minors can't legally take control of their own inheritances, so an adult must manage their money and property for them until they reach the age of majority. Someone must care for and raise the child as well. You can name the same individual to assume both roles, but you'll give that person a great deal of power.

Guardian Vs. Custodian of a Minor Child in a Will

A guardian and custodian become necessary in the event a child's parents pass away, leaving assets and an inheritance behind. Minor children cannot inherit money or assets outright, so a custodian is named or appointed to manage the assets until the child reaches an appropriate age. A guardian, in contrast, is responsible for overseeing the child's day-to-day physical and financial well-being. These positions may be named in a parent's will or appointed by the court.

Can People With Legal Guardianship Take Children Out of State?

Guardianship is a legal arrangement established by a court in which a nonparent takes over the responsibilities of caring for a child. While a court may appoint a guardian if a child's parents are deceased, in many situations, the parents are simply unable to care for the child due to illness or substance abuse, or are unavailable for long periods of time due to military service or other work-related responsibilities. Guardianship generally terminates when the child reaches the age of 18, but may continue after that time if the child is mentally or physically disabled.

LLCs, Corporations, Patents, Attorney Help

Related articles

Advantages of Trust Funds for Children

Establishing a trust fund for your minor children is a way of passing money to them that differs from handing them a ...

Legal Guardianship of an Abandoned Child

Working out the custody of a child can be a confusing and heartbreaking process, especially if parents are fighting ...

Legal Guardianship in Nebraska

Nebraska law recognizes that certain people cannot take care of themselves because of their age or mental condition. ...

Setting Up Guardianship in a Will

Probate courts appoint legal guardians to care for minor children if their parents die. A guardian ensures a child ...

Browse by category
Ready to Begin? GET STARTED