It’s About Relationships

When heirs or beneficiaries are minors, you need a guardian ad litem

On Behalf of | Aug 10, 2022 | Probate Litigation |

When a parent dies, leaving minor children as survivors, the minor children have inheritance rights. Whether the minor children inherit under a will or they inherit as intestate heirs, their rights must be represented in the probate process. Because children cannot simply inherit property in their names, someone must represent the children’s interests. The person who represents such interests is known as the guardian ad litem.

What is the difference between a guardian and a guardian ad litem?

Although the names sound similar, a guardian ad litem is different from a guardian. A guardian is a person in charge of the child’s daily life (either financially or functionally). The guardian performs many functions of a parent — signing school forms, taking financial responsibility for the child, providing for the child’s physical and emotional needs. A guardian ad litem is a legal representative appointed by the court to represent the child, essentially as the child’s attorney throughout the probate process.

What does a guardian ad litem do?

Throughout the probate process, heirs and beneficiaries are entitled to information on the probate process. The reason we give notices and information to an heir is so that they may consent to or object to acts of the executor. For example, an executor may create a notice of proposed action, notifying beneficiaries of the sale of a house. An adult beneficiary could review the notice in object if, say, they thought the house is worth much more than the asking price. A minor child cannot make such an objection. Indeed, the minor child wouldn’t normally be able to understand things like whether a realtor should get a 5% or 6% commission on the sale of a house. The guardian ad litem acts on the child’s behalf, making sure the estate is being administered in the child’s interest.

Who should act as a guardian ad litem?

Most courts want to see an attorney act as guardian ad litem. Because an attorney is going to understand the probate process and will better be able to ascertain whether the probate is being administered properly. A guardian ad litem must petition the court and be approved to represent the child. Although the guardian ad litem will represent only the child, their fees are generally paid by the probate estate itself, at the end of the probate process.

An experienced probate attorney will generally have relationships with other attorneys who can act as guardian ad litem.