Virtual Representation – Say Goodbye to the Guardian Ad Litem?

Creative imageBefore Massachusetts adopted the Massachusetts Uniform Trust Code (MUTC) in 2012, in order to make any binding changes to an irrevocable trust, we would need to petition the court for authority.  Due to the very nature of a trust, the possibility of having trust beneficiaries who are either not competent or not yet alive virtually always exists.  In the past, an individual known as a guardian ad litem would have to be appointed by the court to represent the interests of those incompetent and potential beneficiaries, since they would be unable to speak for themselves.  This added even more complexity and expense to an already expensive and time consuming process.

The MUTC completely changed the process of making binding changes to an irrevocable trust by adopting virtual representation.  Virtual Representation allows for other trust beneficiaries with substantially similar interests to represent the interests of those beneficiaries who are unable to represent themselves, as long as no conflict of interest exists.  So, for example it may now be now possible for an adult grandchild to represent other minor grandchildren, all of whom are remainder beneficiaries in a trust if their respective parents were to predecease them.

Exactly who may represent whom may not be completely clear in every situation.  Conflicts of interests among beneficiaries can be intrinsic within most trusts.  Could a parent represent a minor child who will receive assets if the parent dies?  Are those interests substantially similar?  Because the MUTC and the Uniform Trust Code are still relatively new, there are no firm answers to these questions yet.  Still, virtual representation does allow us to have binding agreements regarding a trust without having to go to court.  And, that is progress and a potentially great development for most clients facing such situations. Duck


About Tracy Craig

Tracy is a partner and chair of the firm's Trusts and Estates Group. She focuses her practice in estate planning, estate administration, prenuptial agreements, tax-exempt organizations, guardianships and conservatorships and elder law. Before joining Mirick O'Connell, she was counsel at Testa, Hurwitz & Thibeault LLP, in Boston.
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