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The Role of a Guardian ad Litem in the Probate of New York Estates


When a probate matter is pending before a New York Surrogate’s Court, all “interested parties” have a right to be notified and to appear in the case. An interested party is basically anyone who stands to benefit from the decision to admit, or not admit, the Will. This commonly includes the children of the deceased.

But what if those children are still minors? Legally speaking, minors cannot give their consent to legal matters or even formally receive notice of a probate matter. In these situations, the Surrogate’s Court will appoint a Guardian ad Litem to represent the child.

Guardian ad-litem literally translates to “guardian for the litigation.” It is not the same thing as a guardianship over a person or property. It merely refers to a temporary situation where a minor, or another incapacitated person, requires representation in connection with a legal matter, such as participation in the probate of a family member’s estate.

Appeals Court: 22-Year-Old Does Not Need a Guardian ad Litem

A Guardian ad Litem is not necessary when a person is over the age of 18 and is not otherwise legally incapacitated. If a court mistakenly appoints a guardian ad litem–say, because the surrogate is unsure of the age of a party–the affected person should object. Keep in mind, a guardian ad litem has the ability to take certain actions that may affect the protected individual’s legal rights.

These issues came up in a recent decision from the Appellate Division, Third Department. In this case, Matter of Ross, a man named James Patrick Stewart Ross died in 2017. Ross left most of his estate to his three siblings in his Will.  Ross was survived by his two children, a son and a daughter, who were considered interested persons in the Ross estate, but were not mentioned or disinherited in the Will.

The Surrogate’s Court, acting out of what it called an “abundance of caution,” decided to appoint guardians ad litem for the son and daughter. Meanwhile, Ross’ siblings each signed documents waiving their rights to contest the Will. Later, the siblings sought to withdraw these waivers and objected to the appointment of guardians ad litem for the decedent’s children.   The son and daughter moved to contest Ross’ Will through their respective guardian ad litems.

The daughter was 22 when Ross died, and she was not considered legally incompetent under New York law.  Although a guardian ad litem can be appointed for an individual over 18 years of age, but under 21, if the individual is consenting to such appointment, such as the decedent’s son, the daughter was over that age threshold.  The appeals court therefore terminated the appointment of her guardian ad litem.

Speak with a Putnam County Probate Lawyer Today

The purpose of a Guardian ad Litem is to ensure minors and incapacitated adults receive proper legal representation in connection with probate matters. The administration of an estate often involves a complex set of legal rights and responsibilities. So even if you do not require a guardian ad litem, you should still seek advice and assistance from a qualified Putnam County probate attorney. Contact the offices of Meyer & Spencer, PC, today to schedule a consultation with a member of our estate planning and probate team.




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