Massachusetts recently adopted the Uniform Probate Code (M.G.L. ch. 190B) and the Uniform Trust Code (M.G.L. ch. 203E). These codes are intended to modernize the state’s Probate and Trust laws, and make the administration of trusts and estates less costly and more efficient.
One important feature is that both codes embrace the concept of “virtual representation.” Historically, Massachusetts courts have appointed an attorney, called a guardian ad litem, to represent minors, mentally incapacitated adults and unborn heirs with respect to their rights in trusts and estates. Virtual representation provides that if a minor, mentally incapacitated adult or unborn heir has an interest that is substantially the same as the interest of a competent adult, the competent adult can represent and speak for those persons. For example, a parent could represent his or her children’s interests. The children, incapacitated adults or unborn heirs will be bound by the decisions made by their representative. If the court determines in any case that there is a conflict of interest or that their interests are not substantially the same, the court can still appoint a guardian ad litem to represent and protect those interests.
Virtual representation should reduce the court’s use of guardians ad litem in many cases where such representation is appropriate, and reduce the cost and time of processing the trust or estate through the court system.