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Inheritance for a Minor Child: Role of Guardian ad Litem

Written by on May 18, 2011| Posted in: Estate Litigation

How can a minor child inherit from an estate? 

In Florida probate,  money and property is often left  to minors.  These gifts to minor can be through  a will or trust, or a child can take through intestacy (where there is no will).  However, Florida probate laws often requires that a guardian ad litem be appointed to represent the minor child’s financial interest.

While Florida has laws for guardians of persons and property, oftentimes a minor only needs to have a Guardian Ad Litem appointed.  For all civil matters generally, a court must “appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or…make such other order as it deems proper for the protection of the infant or incompetent person.”  Fla. R. Civ. P. 1.210(b).  Recently my office represented a client is a trust termination case which came from an undue influence contest.  Through mediation the matter was able to be resolved by all of the parties, however, the trust was to provide to the minor’s mother, the minor child and final beneficiaries.  Through actuarial tables we were able to determine the percentages due to the minor, her mother, and the ultimate residual beneficiary.

Despite all the parties to the underlying action agreeing upon the settlement amounts calculated, Courts are very sensitive to the rights of minors.  To ensure transparency, compliance with the Florida probate laws, and justice, I petitioned the Court to appoint a Guardian Ad Litem to review and recommend the most advantageous receipt of the funds for the minor even though the minor is living with her mother and father.  The purpose of a guardian ad litem is to investigate and protect the rights of the person he or she is appointed to represent.  In my recent case, the court appointed guardian met with the minor and her mother and father to hear about their hopes, goals and plans.  He further met with them and a financial planner in his investigation.  Upon completion of his investigation, he issued a report to the Court where he advised the settlement amount was fair to the minor, as well as a plan as to how the assets were going to be held for the benefit of the minor.

The failure to appoint a guardian ad litem generally means the proceedings are voidable as to the minor’s interests.  This means that, if an ad litem had not been appointed and issued a report, the minor could come back and potentially challenge the settlement of the Florida probate litigation we were able to conclude at mediation.

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