Can a Non-Citizen of the U.S. Become a Guardian or Trustee?

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Guardianship Attorney and NJ Trust Attorney

As to the question of whether a non-U.S. citizen can serve as a guardian, Rule 4:81-4 of the New Jersey Supreme Court today merely states that “as between persons equally entitled, the Surrogate’s Court in granting letters shall give preference to a resident of this State, unless the best interests of the minor will not thereby be served.”  However, the case of Caruso v. Caruso, 106 N.J.Eq. 130, 148 (E. & A.1930) stated that “[i]If the guardian is without the jurisdiction, the appointing court would be… powerless to enforce its decree against him personally so as to render him amenable to an order to account, to contempt proceedings or to be dealt with summarily,” which rejected an application for an Italian citizen/resident to be a guardian for a child in New Jersey.  6 N.J. Prac., Wills And Administration § 734 (Rev.3d ed.).  This case is technically good law, though whether courts will apply it is still a question.  So based on the court rule alone, it is possible to be appointed, but if there was a challenge, the Caruso case could be cited to deny a person their application to be appointed as a guardian.

To the question of becoming a trustee, N.J.S.A. 3B:11-2 requires a letter of trusteeship to be issued by the Superior Court in order to be a testamentary trustee.  Rule 4:80-5 is the same as 4:81-4, merely giving preference to residents over nonresidents.  N.J.S.A. 46:3-18 allows “[a]ny alien who shall be domiciled and resident in the United States and licensed or permitted by the government of the United States to remain in and engage in business transactions in the United States, and who shall not be arrested or interned or his property taken by the United States” to have the same rights and privileges as native-born citizens, which includes being a trustee.  Unfortunately, the statute only allows those permitted to be in the country to have the same rights, so this would exclude an illegal alien.  It also excludes aliens from any country that we are at war with.  Caparell v. Goodbody, 132 N.J. Eq. 559, 29 A.2d 563 (Ch.1942).

In one case of ours a client of ours is an illegal resident of New Jersey. Tehnically, court rules could allow her to be appointed as a guardian or trustee, but there seems to be a low likelihood this will happen.  If she were here legally and formally a resident of the state, because she is subject to the jurisdiction of the United States and New Jersey, a court would be more willing to grant her the ability to be a trustee and/or guardian.  Because she isn’t, she is “without the jurisdiction” of the State, and a court is unlikely to grant her this ability.

To discuss your NJ guardianship or trust related matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing consultations if you are unable to come to our office.