Sometimes in Surrogate’s Court proceedings there are parties who have an interest in the proceedings but for some reason they cannot legally participate. This can occur in any type of proceeding: Probate, Administration and Accounting are the most common. A party is considered “interested” if the proceeding affects them in some way. In order to proceed with ANYTHING in Surrogate’s Court, you have to have “jurisdiction” over interested parties. What this really means is you have to show the Court that the party was legally notified of the proceeding, and they either agree, object or take no position. Bottom line though, the Court has to know they were notified and given the opportunity to be heard.
In a probate proceeding, the Court must have jurisdiction over anyone who would inherit under intestacy, since these are the only people would would have standing to object. In an Administration proceeding (no Will), we need jurisdiction over all the inheritors because someone is asking to be named as Administrator, a right that the inheritors also have.
The problem is sometimes the people you need jurisdiction over either cannot consent, cannot legally be served with a notice, or cannot be found.
Here are a few common examples:
- Minors – in New York a person under age 18 is cannot legally sign a Waiver or object to a proceeding that affects them.
- People who are mentally or physically disabled.
- People who are incarcerated.
- People whose whereabouts are unknown.
If someone fitting any of the above categories is identified as having an interest in a Surrogate’s Court proceeding, the Court will appoint a “Guardian-ad-Litem” (Latin for Guardian for the litigation). These Guardians represent their ward’s interest in the case and report their findings to the Court. If they have a basis to file Objections on their ward’s behalf, they are empowered to do it. Guardian-ad-Litems are usually attorneys who practice in the Surrogate’s Court. At the conclusion of their service, they file a Report which includes a statement of the time spent, for which they request the Court to set a fee. This fee is paid by the Estate.
I have been appointed Guardian-ad-Litem many times. I take the assignments very seriously, and am honored that the Surrogate has the confidence to appoint me. Although many times the reports are pro-forma and state that things are all in order and there is no basis to object, by no means is it always a rubber stamp. I have filed Objections MANY times, and very often these cases are quite interesting.
For example, I am currently Guardian-ad-Litem in a case where an Administrator was appointed, then found a Will among the decedent’s possessions, which was filed with the Court. However, they did not try to probate the Will because the Will had writing on it, apparently in the Testator’s handwriting, saying “This Will is no good”. The Will also had sections crossed out. The Will named a non-family member as the sole beneficiary. The Administrator took the position that the Will had been “revoked” by the writings on it, and proposed to pay all the money to the decedent’s estranged son. The Administrator claimed they did not know where the named beneficiary was. The Surrogate appointed me Guardian-ad-Litem for the beneficiary. I filed Objections on my wards behalf, because in my opinion it is arguable this Will was not properly revoked. I then tried to find my ward (who the Administrator claimed they could not find), and within an hour I found her! I don’t know yet how this will turn out, but at least now the issues can be fairly decided, with all the interested parties being heard from.
I have certain steps I follow when I am appointed Guardian-ad-Litem. Among the things I do are review the Court file, contact the Petitioner’s attorney and discuss the case, contact my ward (if appropriate), contact other interested parties if necessary, research legal issues, participate in Court proceedings, file a report and any supplemental reports the Court may require.
Anyway, the above are the basics. In future posts I will discuss other specific Guardian-ad-Litem situations.