28th Sep 2012
The last post addressed Okla. Stat. tit. 58 § 125 as an addition or clarification to the general rule of Okla. Stat. tit. 58 § 126 which forbids minors from serving as Administrators of estates, even if they are entitled to serve under the priority rules of Okla. Stat. tit. 58 § 122. However Okla. Stat. tit. 58 § 125 also raises some questions, some of which are dealt in later case law, particularly: In the Matter of the Estates of Watson, 135 P. 3d 853, 2006 OK CIV APP 55 (Okla. Civ. App. 2006). The next few posts will deal with various aspects of the Watson case.
Perhaps the most important issue the Watson case addressed was one of the questions raised in the last post: what kind of guardian qualifies under Okla. Stat. tit. 58 § 125?
Without getting into all the details of the law, there are several types of guardians under Oklahoma law. With respect to a minor, the one that is generally thought of is the general guardian of the person of the minor – the one the minor lives with and the one who takes care of the main details of the minor’s well being. The general guardian of the person is usually also the guardian of the minor’s property.
The Watson case established that a Court may appoint the guardian ad litem of a minor to act as Administrator on behalf of the minor under Okla. Stat. tit. 58 § 125.
A guardian ad litem is not the type of guardian that watches over the person or property of the minor, but they generally “represent” and watch out for the minor’s interest in a specific court case – such as a divorce of the minor’s parents or a case where the child is allegedly deprived by their parents or guardians.
The logic of the Court in Watson was primarily that Okla. Stat. tit. 58 § 125 does not expressly limit a guardian ad litem from serving. The legislature could have excluded guardian ad litems in the original law. And they could amend the statute in the future. But for now, courts will read this statute to include a guardian ad litem.
The Court in Watson also made special mention of the fact that both a guardian and a guardian ad litem can represent a minor in litigation generally. If they can represent a minor in litigation generally, why restrict them from representing them in a probate case?
Perhaps another factor in the Court’s decision was the finding in Watson that the guardian ad litem had in fact been the minor daughter’s custodian, despite lack of a formal general guardianship. However, it appears the ruling the Court put in place lays the groundwork for other guardian ad litems who are not custodians to qualify as Administrators, unless the appellate courts later very narrowly construe the case.
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This blog contains general information and the opinions of the author – not legal advice; you should seek the advice of competent counsel (attorney/lawyer) when considering any legal issues.