Probate & Trust Law Section Conference Manual ... - Minnesota CLE

To the extent there is no conflict of interest between the representative
and the person represented or among those being represented with
respect to a particular question or dispute:
(1) A conservator may represent and bind the estate that the conservator
controls;
(2) A guardian may represent and bind the ward if a conservator of the
ward's estate has not been appointed;
(3) An agent having authority to act with respect to the particular
question or dispute may represent and bind the principal;
(4) A trustee may represent and bind the beneficiaries of the trust;
(5) A personal representative of a decedent's estate may represent and
bind persons interested in the estate;
(6) A parent may represent and bind the parent's minor or unborn child
if a conservator or guardian for the child has not been appointed;
(7) An individual may represent a grandchild or a more remote
descendent, whether born or unborn, whom a parent may not represent
and bind under paragraph (6) of this subsection; and
(8) A qualified beneficiary may represent and bind any beneficiary who
may succeed to the qualified beneficiary's interest under the terms of
the trust or pursuant to the exercise of a power of appointment. 174
Please note that subsections (7) and (8) are not in the UTC. In addition DC Code section
19-1303.02 is broader than the UTC 303.02 because it applies to special powers of
attorney as well as general powers.
c. New York
Surrogate’s Court Procedure Act (SCPA) section 315 permits an individual to represent
either a class of individuals with similar interests or another individual with a more
contingent interest. 175
d. South Dakota
Many non-UTC states, like South Dakota, have virtual representation statutes. South
Dakota’s virtual representation statutes allow for the administration and court supervision
of trusts where there are contingent, unborn or unascertainable beneficiaries. 176
In regard to interests in a trust, it may not be necessary to serve any other person than
those provided in South Dakota Codified Laws section 55-3-32. 177 Generally, service of
process is limited to persons in being and parties to the proceeding. 178 The court shall
appoint a guardian ad litem to represent or protect the persons who may eventually
174 D.C. CODE § 19-1303.03.
175 N.Y. SURR. CT. PROC. ACT LAW § 315.
176 S.D. CODIFIED LAWS § 55-3-31 to 38.
177 “(1) In any contingency to the persons who shall compose a certain class upon the happening of a future event,
then on the persons in being who would constitute the class if such event had happened immediately before the
commencement of the proceeding; (2) To a person who is a party to the proceeding and the same interest has been
further limited upon the happening of a future event to a class of persons described in terms of their relationship to
such party, then on the party to the proceeding; (3) To unborn or unascertained persons, none of such persons, but if
it appears that there is no person in being or ascertained, having the same interest, the court shall appoint a guardian
ad litem to represent or protect the persons who eventually may become entitled to the interest” S.D. CODIFIED
LAWS § 55-3-32.
178 S.D. CODIFIED LAWS § 55-3-32.
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