In certain probate cases, Washington law requires that the interests of minors or legally incapacitated adults be represented by a Guardian ad Litem (GAL) before the court can grant relief in the probate proceeding.
Under RCW 11.76.080, a GAL must generally be appointed when a probate matter affects the interests of a person who:
Is under the age of 18, or
Has been legally determined to be incapacitated.
The GAL’s role is to represent and protect the interests of that individual during the probate proceeding, particularly when the court is asked to grant relief such as nonintervention powers or to approve actions affecting the person’s inheritance.
However, the statute also provides several situations where a GAL is not required.
When Appointment of a GAL May Be Waived
A court may waive the appointment of a probate GAL if one of the following circumstances applies:
Existing Fiduciary
The minor or incapacitated person already has a court-appointed guardian or conservator who can represent their interests.
Fiduciary Representative Named in the Will
The decedent’s Will expressly nominates a Trustee or Custodian to receive the inheritance on behalf of the incapacitated person. In that situation, the nominated fiduciary may serve as the representative for the beneficiary in the probate proceeding, eliminating the need for a GAL.
Surviving Spouse Is Sole Beneficiary with Qualifying Minor Heirs
A GAL may also be unnecessary if:
The decedent’s surviving spouse is the sole beneficiary under the Will,
The incapacitated person is the minor child of both the decedent and the surviving spouse, and
The person’s only incapacity is minority.
How Agile Estate Planning Handles GAL Requirements
Agile Estate Planning will automatically identify when a probate GAL may be required. If all parties have been entered and assigned their roles, the software evaluates the parties and their interests in the estate. When a minor or incapacitated person has an interest in the probate, the system determines whether a GAL may be required for the hearing on granting nonintervention powers.
When this occurs, the software will:
- Create a GAL tab within the drafting interview.
Allow you to identify and name a proposed GAL (when permitted).
Confirm the party or parties who require GAL representation.
Automatically prepare a revised Petition to Admit Will and Appoint Personal Representative that reflects the concurrent motion to appoint a Probate GAL.
This allows the appointment of the GAL to be addressed at the same hearing where the court is asked to open probate and appoint the PR, which is the standard practice in many Washington counties. In this case, a second Petition requesting nonintervention powers and addressing bond will also be drafted.
Full GAL vs. Limited GAL
When a GAL is required, the court may appoint either a full GAL or a limited GAL. In probate matters, courts often prefer the appointment of a limited GAL.
A limited GAL is appointed to perform a specific and narrowly defined task.
Common duties include:
Reviewing a proposed distribution of estate assets to a minor or incapacitated beneficiary.
Waiving notice or consenting on behalf of the represented person.
Evaluating whether actions such as granting nonintervention powers or appointing a personal representative are in the protected person’s best interest.
The court order appointing the GAL must clearly define the scope of the GAL’s authority. Agile EEP provides sample language for defining the duties of the GAL within the Motion for Appointment. This language must be reviewed and tailored to the specific probate matter.