By Scott E. Rahn, Sean D. Muntz & Mathew M. Wrenshall

For years, probate attorneys in California have been stymied by the state’s failure to enact a statute that allowed for the virtual representation of minors, the unborn, the unknown, and the incapacitated. This led to an all-too-frequent reliance on the appointment of a guardian ad litem, a cumbersome and slow process. 

That is now changing. California is aligning itself with 47 other states that provide for virtual representation in certain circumstances. With Assembly Bill 565, newly amended Cal. Prob. Code § 15804 allows virtual representation of beneficiaries who are minors, incapacitated, not yet born, or unknown. The change removes procedural hurdles and should streamline the resolution of disputes in probate matters. 

The System We Have Lived With

For years, litigators had only one option when a beneficiary could not represent themself. If the beneficiary was a minor, incapacitated, unborn, unknown, or unlocatable, it was necessary to seek the appointment of a guardian ad litem. 

The old version of Section 15804 did not help. Its language was notoriously difficult to interpret and it offered notice rules only for certain successive contingent interest holders. It did not offer a way to provide notice to certain categories of beneficiaries unable to represent themselves (minors, the unborn, the incapacitated, and the unknown) short of appointment of a guardian ad litem. The extra step added delay and complexity to already complicated probate disputes. 

Revisions to Section 15804 Bring Real Change

The amended statute introduces four important updates.

First, the amended statute clearly states that “Notice to a person who may represent and bind another person pursuant to this section is sufficient to comply with a requirement in this division that notice be given to the represented person, and has the same effect as if notice were given directly to that represented person.” Cal. Prob. Code § 15804(a). The updated notice requirements will reduce the number of contingent or successor beneficiaries who need to receive notice. 

As to who can receive notice on behalf of another person, Section 15804(e) specifically sets forth a number of categories of permissible virtual representation: 

(1) A parent may represent and bind the parent’s minor children and children subsequently born if a guardian or guardian ad litem for the child or children has not been appointed.

(2) A conservator of the estate may represent and bind the conservatee.

(3) A guardian of the estate may represent and bind the minor ward.

(4) A guardian ad litem with authority to act with respect to the matter may represent and bind the ward.

(5) An agent with authority to act with respect to the matter may represent and bind the principal.

(6) A trustee may represent and bind the beneficiaries of the trust.

(7) A personal representative may represent and bind persons interested in the estate.

Under the amended version of Section 15804, for example, notice to a parent is sufficient to provide notice to a minor.  Similarly, notice to a conservator is sufficient to provide notice to a conservatee. 

The amended statute does not limit who can virtually represent others to those identified in Section 15804(e). Section 15804(f) also provides that “[u]nless otherwise represented, a minor, an incapacitated person, a person subsequently born, or a person whose identity or location is unknown and not reasonably ascertainable may be represented by and bound by another person having a substantially identical interest with respect to the particular question or dispute.” It remains an open question what a substantially identical interest is. Importantly, the ability to represent a member of the same class is limited in that the representative and the represented person “shall not have a conflict of interest during the representation with respect to the particular matter that is the subject of the representation.” 

If a representative consents to a proposed action on behalf of a represented person, the representative must do so in writing. Cal. Prob. Code § 15804(c)(1). That consent is binding on the represented person “unless the represented person objects to the representation before the consent would have become effective.” Id. at § 15804(c)(1),(2). 

Finally, Section 15804(c)(3) provides that a “fiduciary who acts in reliance upon a representation made pursuant to this section shall not be liable for any resulting loss, unless the fiduciary committed a breach of trust intentionally, with gross negligence, in bad faith, or with reckless indifference to the interests of a beneficiary.“ The protection for a fiduciary is reassuring, but fiduciaries should nevertheless proceed with caution, particularly when dealing with consent for persons not affirmatively identified in the amended statute. 

A More Direct Litigation Path

All of these changes transform Section 15804 from an outdated notice rule into a practical and modern representation tool that can keep cases moving without sacrificing protection for absent beneficiaries or parties. The changes will make trust litigation more efficient. When interests align, attorneys can move a case forward without pausing to appoint a guardian ad litem. Mediation becomes more manageable. Discovery can proceed without delay. Judges gain flexibility. Families save money. Attorneys can focus on substance rather than procedural hurdles.

Judgment Still Matters

Virtual representation is powerful, but it is not automatic. It only works when interests genuinely align. Litigators must examine not just the trust document but the emotional terrain surrounding it. Family dynamics can distort what may appear aligned on paper. A parent beneficiary might appear to share a minor child’s interest, but if the distribution structure could shift value between them, alignment disappears. A trustee facing a petition cannot represent the beneficiaries pressing that petition. Even two beneficiaries with identical percentage interests may drift apart when timing, taxes, or investment positions come into play.

Understanding these subtleties matters. When we know the family history, past grievances, and emotional undercurrents, we can determine whether virtual representation is appropriate or if the case still needs the protective oversight of a guardian ad litem.

Looking Ahead

The impact of the amendments to Section 15804 is clear. By allowing virtual representation in appropriate circumstances, the statute removes procedural barriers that often slowed trust litigation without adding meaningful protection. Cases that once stalled due to the absence or incapacity of a beneficiary can now move forward when interests genuinely align, allowing disputes to be resolved on their merits rather than delayed by process.

Virtual representation will not eliminate conflict. Nor will it diminish the emotional weight that often accompanies trust and estate litigation. What it does offer is a more balanced system, one that preserves safeguards for vulnerable beneficiaries while reducing unnecessary cost, delay, and disruption for families and fiduciaries alike.

In a practice area where legal structure and human dynamics constantly intersect, this added flexibility matters. The amended statute gives litigators a clearer, more precise framework within which to work, and creates space to focus on the substantive issues that drive these cases. In doing so, it modernizes trust litigation in a way that better reflects the realities families face.