Who speaks for unborn, minor and unlocatable beneficiaries? Virtual representation under Probate Code 15804

How can one bind an unborn person, a minor, an incapacitated person or an otherwise unascertained person to a trust proceeding? This concept, known as "virtual representation," is a challenge that plagued trust litigators for years. Then came AB 565, which became effective on Jan. 1, 2026, repealing and replacing Probate Code section 15804 and overhauling virtual representation in California.

In its simplest form, virtual representation is a doctrine that allows one person to legally stand in for and bind another in trust proceedings. Prior to Jan. 1, 2026, Probate Code section 15804 concerned itself with who was required to receive notice of a particular trust proceeding. Under the prior iteration of the statute, notice could generally be given to a living person whose interest stood in a particular relationship to those who might take in the future. The new Probate Code section 15804, however, provides mechanisms by which an individual with a present interest can bind those with future interests in a pending trust proceeding. To illustrate the impact of the new Probate Code section 15804, let's get to know Stan and Fred. Stan creates an irrevocable trust that pays Fred the trust's income while Fred is alive. The trust also allows the trustee, in the trustee's sole discretion, to make payments to Fred from the trust principal for Fred's health, education, maintenance and support ("HEMS payment"). Upon Fred's death, the trust gifts all accumulated and unpaid income and the trust's principal to Fred's surviving issue.

At the time the trust is created, Fred is 40 years old, has two living minor children and is planning a wedding to Sandra with a hefty price tag of $200,000. A dispute subsequently arises between Fred and the trustee. Specifically, Fred demands payment from the trust principal to pay for the wedding, claiming that the distribution is a HEMS payment. The trustee is unconvinced and elects to file a petition for instructions under Probate Code section 17200(b)(6) to ask the court whether the wedding costs are a HEMS payment.

The prior Probate Code section 15804 merely answers the question of who is entitled to notice of the trustee's petition. Even though Fred has two living minor children, the identity of Fred's "surviving issue" cannot be ascertained with any certainty until Fred's death. Thus, under former Probate Code section 15804, it would ordinarily be sufficient for the trustee to provide notice to Fred only. While this may not appear fair to Fred's two living children, there is no guarantee that (1) Fred's two living minor children will survive Fred; or (2) that on the date of Fred's death, Fred will have additional issue, i.e., other children and grandchildren.

The downside of the prior iteration of Probate Code section 15804, however, is that it does not permit Fred to bind his two living minor children and potential future issue to the outcome of the trust proceeding. After all, the trustee is correct in recognizing that a $200,000 payment to Fred from the trust principal to pay for the wedding will negatively impact Fred's surviving issue.

Did life become easier for Fred and his trust litigation counsel with the promulgation of AB 565 on Jan. 1, 2026? After all, the new Probate Code section 15804 permits parents to bind their children and unascertained heirs, a conservator of an estate may bind their conservatee, a guardian of an estate may bind their ward, a guardian ad litem may bind their ward if granted such authority by the court, an agent may bind their principal if provided the requisite authority, a trustee may represent and bind trust beneficiaries, and a personal representative of a probate estate may bind persons interested in the estate.

The answer to that question, like many issues under the law, is "it depends." While the new version of Probate Code section 15804 ostensibly allows Fred to bind his two living minor children and unascertained issue in the trust proceeding, Fred will likely not be able to do so under Probate Code section 15804(b)(1). Specifically, Fred's financial interest in the distribution is directly in conflict with his surviving issue. Thus, it is likely that Fred's $200,000 distribution to pay for the wedding is the sort of self-interested use of virtual representation that section 15804(b)(1) is intended to prevent. The California Lawyers Association's discussion of AB 565 explains the conflict limitation as a safeguard to prevent persons like Fred from using virtual representation to their own advantage.

Now, assume the $200,000 distribution is not to pay for a lavish wedding but to pay for Fred's experimental treatment to combat a rare form of cancer. Fred's doctors have advised Fred that this experimental treatment is the best hope to save Fred's life. The trustee is presented with evidence of the treatment's effectiveness and the fact that without the principal payment, Fred cannot afford the treatment. The trustee believes the expenditure of the $200,000 is reasonably necessary and the type of HEMS payment Stan intended. Still, concerned about the diminution in the principal to the detriment of Fred's issue, the trustee elects to file a petition for instructions despite the fact that one is likely unnecessary.

In this scenario, the court finds that the $200,000 payment to Fred does not create a similar conflict under Probate Code section 15804(b)(1) as the payment is one intended by Stan. In short, if every authorized use of the principal of Stan's trust automatically created a conflict because it reduced the remainder interests of Fred's surviving issue, virtual representation would become substantially useless.

In conclusion, the new Probate Code section 15804 gives California trust counsel a useful tool concerning virtual representation that the prior section 15804 did not. This tool, however, is only as useful as the facts underlying a specific trust proceeding. The example above illustrates how the doctrine works best when the representative's interests--in this case, Fred's--align with those represented, as when a trust distribution fulfills the settlor's intent. It is incontrovertible that virtual representation under the new Probate Code section 15804 makes trust proceedings more efficient, but trust counsel and the courts must carefully evaluate each fact pattern for potential conflicts.