The Role of the Guardian ad litem (GAL) in a Probate Proceeding

A guardian ad-litem, also known as a GAL, is a person who is appointed to represent the rights and interests of a minor or incapacitated person during a legal proceeding.  This is not the same as a guardian of the person or property of a minor or incapacitated individual who is appointed to make generally personal and financial decisions for that person.  A guardian ad-litem is used only temporarily in a situation where someone requires representation in a legal matter.  This role is commonly seen in situations where a minor or incapacitated adult is needed to participate in the probate process for a deceased relative’s estate.

Probate is the process by which the Surrogates Court admits a will as valid and issues Letters Testamentary to the estate’s representative who will then use them to administer the estate, pay debts and taxes and distribute the estate’s assets.  The probate process is initiated through the filing of a Probate Petition with the Surrogate’s Court.  The probate petition contains information about the decedent, the petitioner, the witnesses to the last will and testament as well as the names and addresses of all the interested parties.  The interested parties consist of the decedent’s distributees and all the parties named in the will.  The decedent’s distributees are their next of kin or those persons who would inherit from the decedent if they had no last will and testament.

The probate petition is required to include the information of all interested parties so that the Surrogate’s Court can assure that everyone who stands to benefit from either the will being admitted or not admitted to probate has the opportunity to participate in the process and object if it is in their best interests.

If one of the interested parties in the probate proceeding is missing or is incapacitated or incompetent to represent their interests, due to injury, illness, age, or some other reason, they may be listed as disabled in the probate petition and the Surrogate’s Court can appoint a Guardian ad-litem to represent the disabled person in the probate matter.  The Guardian ad-litem is generally an attorney familiar with probate matters who will represent the rights and interests of the minor or incapacitated adult as the administration of an estate often involves a complex set of legal rights and responsibilities. The GAL is selected by the Surrogate Court judge off a list of qualified attorneys.

The GAL in a probate proceeding examines the validity of the will by interviewing or deposing the witnesses to the will along with the attorney draftsperson of the will. The GAL’s role is to make sure that the minor or disabled or missing person is protected from an improper will which may negatively affect them. At the end of their investigation, they produce a report to the court with recommendations. They are entitled to a legal fee for their work, generally billed hourly, to be paid from the estate.

If you are an interested person in a probate matter, contact the Law Offices of Roman Aminov, P.C. at 347-766-2685 to get advice from an experienced estate planning and probate attorney to ensure your interests are protected.

This article is for educational purposes only - to provide you general information, not to provide specific legal advice.  Use of this post does not create an attorney-client relationship and information contained herein should not be used as a substitute for competent legal advice from a licensed attorney in your state.



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