THE DOCTRINE OF VIRTUAL REPRESENTATION OF INCAPACITATED, MINOR, UNBORN AND UNASCERTAINED BENEFICIARIES IN RELATION TO NOTICE OF AND REPRESENTATION IN A PROBATE CODE § 17200 PROCEEDING
By Josef D. Houska*
When filing a petition regarding a trust, the question often arises as to how to handle the rights of the incapacitated, minor, unborn and unascertained beneficiaries.1 This issue requires consideration of the rights of these persons to receive notice and their right to be substantively represented. For example, Probate Code § 17203(a)(2) requires notice to all2 beneficiaries for a Probate Code3 § 17200 Petition and Probate Code § 15403 requires consent of all beneficiaries for modification of a Trust. If a beneficiary does not receive proper notice of a Probate Code § 17200 petition or does not receive adequate representation, he or she may later attack an order regarding the petition as void4because of a lack of personal jurisdiction, even if the beneficiary was a minor, unborn or unascertained when the petition was filed.
The issues in this area can be stated succinctly: