Appointing a Guardian ad Litem for a Minor
(or otherwise incapacitated) Heir or Beneficiary

  1. The Problem
  2. The Net Result
  3. Appointing a Fiduciary
  4. What Is a Guardian ad Litem?
  5. Exceptions
  6. Procedure for Appointing a Guardian ad Litem
  7. Procedure for Obtaining a Waiver Regarding the Appointment of Guardian ad Litem
  8. King County Policy
  9. Waivers by Trustees or Guardians

The Problem

In order for you to satisfy your requirements for giving notice to, receiving a consent or waiver from, making a distribution to, etc., an heir or beneficiary, he/she must have legal capacity, and a minor (ie, a person under age 18), for example, lacks such capacity.

The Net Result

Make sure that if any heir or beneficiary lacks legal capacity, you deal with that person through his/her proper fiduciary.

Appointing a Fiduciary

RCW 11.76.080 provides that the Court may appoint a disinterested person as a Guardian ad Litem for an incapacitated person who has no Guardian and is interested in a Descendant’s estate and shall appoint a Guardian ad Litem for certain hearings, such as on a Petition for Nonintervention Powers if Notice of Hearing is required under RCW 11.68.041 or on a Petition for Adjudication.

What Is a Guardian ad Litem?

A Guardian ad Litem is a person appointed by the Court to represent someone who can’t represent him/herself, usually because of a disability, such as minority.

Appointments of Guardians ad Litem are usually made from a list of local social workers and probate attorneys who have volunteered
for such appointments and passed a state certification program.  While they are knowledgeable, experienced, and efficient and have volunteered to be appointed, they typically don’t offer to waive their fees, which are ultimately determined by the Court and usually charged to the estate.  It is unusual to have a Guardian ad Litem appointed in a solvent probate estate without ultimately incurring a fee of at least $500 and often substantially more if the issues presented are more than routine.\

Guardians ad Litem serve an important role, generally providing the Court with a neutral, third party who can independently gather facts and determine that proper legal procedures are being followed for the protection of those incapable, either functionally or legally, of taking care of themselves.  Nevertheless, they can add expense and do add another party to satisfy, so from the perspective of a potential Personal Representative and the efficient probating of an estate, it is usually advantageous to see if their appointment can be avoided, especially if there is no evidence of contentiousness between or among the potential Personal Representative and the incapacitated heirs or beneficiaries.

Exceptions

  • If a fiduciary, such as a Guardian, has already been appointed for the incapacitated person.
  • If Descendant’s Will has expressly nominated a Trustee or Custodian for the incapacitated person, in which case you should request the Court to confirm the appointment of the nominee as a
    fiduciary for the incapacitated person.
  • If Descendant’s surviving spouse is the sole beneficiary under Descendant’s Will, the incapacitated person is a minor child of Descendant and the surviving spouse, and the sole incapacity of the incapacitated person is his/her minority, in which case your should request the Court to waive the appointment of a Guardian ad Litem.  RCW 11.76.080

Procedure for Appointing a Guardian ad Litem

If one or more heirs or beneficiaries of Descendant’s estate is incapacitated and none of the foregoing exceptions applies, complete a: Motion for Order Appointing Guardian ad Litem form and present it to the Court at your hearing.

Procedure for Obtaining a Waiver Regarding the Appointment of Guardian ad Litem

If one or more heirs or beneficiaries of Descendant’sestate is incapacitated, and your situation falls into the third exception described above, complete a: Motion for Order Waiving Appointment of Guardian ad Litem form and present it to the Court at your hearing.

King County Policy

In King County, the policy is to appoint a GAL for a minor heir or beneficiary or class of similarly situated minor heirs or beneficiaries unless Descendant’s Will has nominated a Trustee or Custodian, and to consider the GAL’s fees as an expense of administration, such that they are chargeable against the estate as a whole and not solely against the minor’s share.  Comments by Commissioner
Watness, Ex Parte Practice Tips CLE, KCBA, December 15, 2004.

Waivers by Trustees or Guardians

RCW 11.96A.140 provides that a Guardian of the Estate or a Guardian ad Litem may make a waiver on behalf of an incapacitated person, and that a Trustee may make a waiver on behalf of any competent or incapacitated beneficiary of the Trust.