When Minors Are Involved In Probate Litigation

As a firm that works closely with clients involved with probate litigation, we have discussed why people contest wills, trustees who fail to uphold their fiduciary duties, and how an attorney can assist you during this process. When people draft wills or create trusts, they choose beneficiaries. Some of them may be minors, and there could even be beneficiaries that have yet to be born. (E.g Imagine a grandparent who updates his will or trust after discovering their daughter is pregnant.) As beneficiaries, these minors are casual observers of the process. They have rights, and those deserve protection. How is this accomplished during probate litigation? 

Under specific circumstances, the parent can speak for the child. The court allows this to happen because of virtual representation. People can speak for and represent minors, unborn children, and those who cannot be located insofar as their interests are aligned. The assumption is that because their interests are identical, one person can speak on behalf of the other. There are, of course, an unlimited number of scenarios where the parent and minor child’s interests do not align. In which case, there may be the need for a guardian ad litem.

Guardian Ad Litem

The role of the guardian ad litem (GAL) or an administer ad litem is to protect the rights of the minor during the litigation process. They are not guardians in the traditional sense. GALs are not there to make decisions regarding the child’s care. They investigate the situation and advocate for the child’s interests. Though the guardian ad litem will likely be an attorney, they are not the child’s lawyer. That is why a GAL could potentially represent multiple people in a given legal proceeding. 

Their role is different from both the judge and the attorneys involved in the litigation. To get an idea of how they can benefit a minor, think about a will that has been contested. A judge determines a specific amount of money should go to a parent and their minor child—but they are two different beneficiaries. A guardian ad litem could be appointed. They could meet with the parent, a financial advisor, or anyone else that could help them understand the case. Ultimately, they could submit a report to the judge to recommend how much of the money belongs to the child. 

Luis E. Barreto & Associates

The attorneys at Luis E. Barreto & Associates can litigate on your behalf if you face trust, guardianship, or probate litigation. Our role is to fight aggressively for your goals and wishes. Contact us today to schedule a free initial consultation.

Luis E. Barreto