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Probate: When a Guardian ad Litem is Necessary

Posted by Lauren Rios | Sep 19, 2022

The probate court may appoint a guardian ad litem at any stage of a probate proceeding to represent the interests of any of the following if the court determines that representation of the interest otherwise would be inadequate:

  • A minor.
  • An incapacitated person.
  • An unborn person.
  • An unascertained person.
  • A person whose identity or address is unknown.
  • A designated class of persons who are not ascertained or are not in being.

A guardian ad litem may also be appointed for a person whose identity or address is unknown. The appointment may be made on the court's own motion or on request of a personal representative, guardian, conservator, trustee, or other interested person.

A guardian ad litem may be appointed to represent several persons or interests if not precluded by a conflict of interest. A guardian ad litem may be appointed in situations in which a guardian or conservator has already been appointed if the need for a guardian ad litem exists. Probate Code section 1003 does not limit any power the court may have to appoint an attorney to represent the interests of an incapacitated person.

The reasonable expenses of the guardian ad litem, including compensation and attorneys' fees, must be determined by the court and paid as the court orders, either out of the property of the estate involved, by the petitioner, or from such other source as the court orders. If a beneficiary for whom a guardian ad litem is appointed has an interest in only part of an estate, only the beneficiary's interest and not the whole estate may be charged with the expense.

About the Author

Lauren Rios

Attorney Lauren Rios established her law practice on the philosophy that everyday people deserve access to the exemplary services of a big firm, but with the personal touch of a smaller firm. This belief is reflected in her delivery provided to her clients throughout California.

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