New York Mental Hygiene Law § 81.44: What a Guardian Must Do When an Incapacitated Person Dies
When an Article 81 guardian learns that the incapacitated person (“IP”) has passed away, the job is not finished. New York Mental Hygiene Law § 81.44 creates a tight timetable for wrapping up the Guardianship, transferring assets to the estate, and settling the books. Missing a deadline can trigger removal, contempt, or personal surcharge. Below is a practical road map for guardians—and for fiduciaries who inherit an estate that was previously under guardianship.
1. Why § 81.44 Matters
- Bridges two court systems—Supreme Court (guardianship) and Surrogate’s Court (estate).
- Protects heirs and creditors by forcing a prompt inventory and turnover of assets.
- Gives the court examiner and interested parties leverage to compel compliance.
- Sets bright-line dates—20 days and 150 days—with almost no extensions.
2. What a Guardian Must Do When an Incapacitated Person Dies – The Two Core Documents
| Document | Deadline | Contents | Who Gets Served |
| Statement of Death | Within 20 days of death | Caption, index #, IP’s dates & place of death, addresses of all notice parties | Court examiner, appointed or nominated personal representative, local DSS, public administrator |
| Statement of Assets & Notice of Claim | Within 150 days of death | Itemized list & value of all guardianship assets plus claims, liens & projected admin costs | Personal representative or public administrator |
Service must be by regular and certified mail R/R/R unless the guardianship court orders otherwise.
3. What a Guardian Must Do When an Incapacitated Person Dies – Turnover of Property
Except for property reasonably retained to cover unpaid fees, liens or debts, the guardian must deliver all guardianship assets—within the same 150-day window—to:
- The duly appointed personal representative, or
- The public administrator/chief fiscal officer if no personal rep has appeared.
Any dispute over the amount held back is resolved in Surrogate’s Court.
4. What a Guardian Must Do When an Incapacitated Person Dies – Final Report & Judicial Settlement
- File Final Report: within 150 days, with the clerk who receives annual accounts.
- Judicial Settlement: proceed on notice under MHL § 81.33(c).
- No automatic extensions—the guardian must petition for more time and show cause.
5. Enforcement & Sanctions
Failure to meet § 81.44(d) or (f) lets “any person entitled to notice” petition to:
- Compel an accounting
- Suspend or remove the guardian
- State the account and obtain a money judgment
The court may also impose legal fees and surcharges for losses caused by delay.
6. Practical Tips for Guardians
- Collect paperwork fast. Order multiple certified death certificates immediately.
- Pin down asset values. Secure bank statements and brokerage screenshots dated the day of death.
- Lock the premises. Preserve personal property for later inventory.
- Coordinate with the nominated executor. Early cooperation smooths the 150-day turnover.
- Retain enough—but not too much. Courts scrutinize “admin costs” cushions; over-holding delays discharge.
- Calendar all dates. Many guardians miss the 150-day mark because they focus only on the estate proceeding.
7. What a Guardian Must Do When an Incapacitated Person Dies – Common Pitfalls We See at RK Law PC
| Pitfall | Result | Fix |
| Serving notices late or by email only | Risk of removal; fees disallowed | Use certified mail + keep receipts |
| Ignoring Medicaid or tax liens | Estate sues guardian for surcharge | Include liens in Notice of Claim; retain funds |
| No public administrator notice where no executor appears | Court refuses final account | Serve PA within 20 days and 150 days |
8. What a Guardian Must Do When an Incapacitated Person Dies FAQs
A: Assets must be delivered to the personal representative or public administrator within 150 days of death.
A: Only by court order upon motion; § 81.44 forbids automatic extensions.
A: Any notice party may petition to compel an account, suspend/remove the guardian, and state the account for judgment
Ready to Close a Guardianship the Right Way?
RK Law PC has guided dozens of Article 81 guardians through the post-death maze of § 81.44 filings, asset transfers, and final accountings. We can:
- Draft and serve the Statement of Death and Statement of Assets
- Negotiate with estate representatives and public administrators
- Prepare and judicially settle your final account
Disclaimer
This post is for informational purposes only and does not constitute legal or tax advice. Consult qualified counsel for advice tailored to your circumstances.
For more information, please contact NYC Probate Litigation, Guardianship, Probate, and Estate Planning attorney Regina Kiperman:
Phone: 917-261-4514
Fax: 929-556-2089
Email: rkiperman@rklawny.com
Or visit her at:
40 Wall Street
Suite 2508
New York, NY 10005
Visit Regina on LinkedIn
Visit Regina on Facebook
This page is made available by the lawyer for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this site you understand that there is no attorney client relationship between you and the lawyer. The post should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. ATTORNEY ADVERTISING.