|Due process ordinarily requires the joinder or notification of every person whose interest may be affected by the particular judicial proceeding. Except as discussed below, if a beneficiary is under a disability, such as incapacity or minority, and has no guardian, or if persons unborn or unascertained are potential beneficiaries, the Court will appoint a guardian or trustee ad
litem to represent unborn or unascertained persons. As the title indicates, an ad
litem is appointed to represent such interests only for the duration of the particular proceeding, most commonly the audit of a fiduciary’s account. In most cases, counsel for the accountant requests the Court to make such an appointment in order to bar, insofar as possible, subsequent objections. Requirements relating to the appointment of a guardian ad
litem for an incompetent who is a party in a civil action are set forth in Pa.R.C.P. 2051 et
Pursuant to PEF Code §751(6), the appointment of an ad litem is unnecessary where there are other parties who have similar interests or if the minor, unborn or unascertained beneficiary is the issue of a sui
juris living ancestor who is interested in the estate or trust and whose interest is not adverse to that of such beneficiary (the principle of “virtual representation”). In addition, the appointment of an ad litem is sometimes waived where the trust is uncomplicated and of modest value, where there has been a recent accounting or where the interests of the unborn and unascertained beneficiaries are not likely to vest. In such cases, counsel should file a request for waiver of the appointment (an unofficial form is often used). Where the request for waiver is based upon PEF Code §751(6), counsel should furnish the Court with details concerning the interests in the estate or trust of those upon whom virtual representation is based and their relationship to the minor, unborn or unascertained beneficiary.
The appointment of guardians and trustees ad litem in connection with the audit of a personal representative’s account is exceptional. The rule in Philadelphia is that an ad litem will be appointed in every case when the discharge of a trustee or his estate is sought or a particular distribution of corpus is to be made. See Phila.O.C. Rule 12.4.A. Whenever a trustee’s account is filed, counsel should carefully review the facts to determine if an ad litem is required. If so, a petition conforming to Phila.O.C. Rule 12.4.A should be prepared and presented to the Auditing Judge at least two (2) weeks prior to the audit date.
It is common practice in Philadelphia to appoint an attorney as guardian or trustee ad litem. Although nothing precludes the ad litem from obtaining legal assistance, the ad litem normally acts as his or her own counsel. Usually the audit is continued to permit the appointee time to review the case and to prepare a written report to the Court. The contents of such a report are set forth in Phila.O.C. Rule 12.4(5).