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In Probate - is it required to answer a Guardian ad litem with an attorney?
Anonymous4 views4 answers
Our adult sister is estranged from the family,
-expressed she wanted nothing to do with my Dad's Will in emails
-she receives virtually nothing in the Will
-she would not disclose her address to sign a waiver
-could not be found with Due diligence
-did not respond to publication citation
Now the court appointed a Guardian.
We handled all of this ourselves so far and wish to continue doing so if possible.
If we believe everything has been done correctly, should we be afraid of this appointment or is this just a formality in NY Courts?
Thanks so much
It is not legally required to answer with a lawyer, but I strongly suggest it. A guardian ad litem bills by the hour and if you appear pro se and it causes the guardian to spend more hours becuase you are unfamiliar with procedure, it will likely be a waste of estate assets. If you invest in a lawyer, not only will the lawyer be protecting your interests (as opposed to your sisters), but it might likely decrease the bill of the guardian ad litem substatially. At least, consult with a lawyer. Suffolk County is very procedurally orientated, efficient, but only if you are fully familiar with the procedure.
Just a formality, since your sister cannot be found to either sign a waiver or object onher behalf. of course that youubelive everything is done corectly does not mean it was and the guardian can also object on sister's behalf. What the Guardian has to check into is that Dad was competant when he made the will and that there was no undue influenc eor fraud. usually that is found
When an heir is a minor, suffers from a disability or cannot be found, a GAL will always be appointed to represent the heirs interests in the proceeding. I regularly serve as a GAL.
By obtaining an Order of Publication, you have satisfied the court that you took all necessary actions to find her. As a result, the GAL does not need to go into much detail on that issue.
The GAL will generally speak to the drafting attorney and the witnesses to make sure statutory execution rules were followed. There is a presumption that if an attorney supervised the execution of the will, it was properly signed. The GAL will probably ask the attorney about the details surrounding the signing of the will. Speaking to the witnesses will corroborate his statement. At that point if everything seems kosher, the GAL will file a report with the court that the will was properly signed.
Most attorneys sign wills by rote. We ask a client if they know the document is their will, if they read and understand it and do they want me and my assistant to act as witnesses. If an attorney tells me that and the other witness confirms, I am not going to do much more. A GAL is not there to be a hero, just to review the actions.
While I would really have no fear of the GAL (unless I knew the testator was not competent or was being forced) it is a very routine process. However, I would probably want an attorney to review you documents and talk to the GAL.