Sometimes in probate and administration proceedings there are parties who have an interest in the proceedings but for some reason they cannot legally participate.  A party is considered “interested” if the proceeding affects them in some way.  In order to proceed with ANY matter in Surrogate’s Court, you have to have “jurisdiction” over interested parties.  This means that you have to show the Court that the party was legally notified of the proceeding, and they either agree, object or take no position.  In other words, the Court has to know they were notified and given the opportunity to be heard.

In a probate proceeding, the Court must have jurisdiction over anyone who would inherit if there had been no will (under the intestacy statute), since these are the only people that would have standing to object.  In an Administration proceeding (no Will), the court needs jurisdiction over all the inheritors because someone is asking to be named as Administrator, a right that the inheritors also have.

The problem arises when the people you need jurisdiction over either cannot consent, cannot legally be served with a notice, or cannot be found. Here are a few common examples:

1. Minors – in New York a person under age 18 is cannot legally sign a Waiver or object to a proceeding that affects them.
2. People who are mentally or physically disabled.
3. People whose whereabouts are unknown.

If someone fitting any of the above categories is identified as having an interest in a Surrogate’s Court proceeding, the Court will appoint a “Guardian-ad-Litem” (Latin for Guardian for the litigation).  These Guardians represent their ward’s interest in the case and report their findings to the Court.  If they have a basis to file objections on their ward’s behalf, they are empowered to do it.  Guardian-ad-Litems are usually attorneys who practice in the Surrogate’s Court.  At the conclusion of their service, they file a report which includes a statement of the time spent, for which they request the Court to set a fee.  This fee is paid by the estate.