If you’ve ever cracked open the California Probate Code and thought, “There has to be a translator for this,” you’re not alone. Between dense statutory language, cross-references that send you in circles, and provisions that seem written for a different era, even seasoned practitioners can find themselves doing a double-take.
That’s exactly why this new series exists.
Welcome to Episode One of “Decoding the Probate Code”—a practical, plain-English walk-through of some of the most confusing (and often overlooked) corners of California trust and estate law. The goal isn’t to turn you into a law professor—it’s to make these rules actually make sense in the real world, where deadlines, clients, and court calendars don’t leave much room for guesswork.
Hot off the press: AB 565
This past year, the California Legislature approved (and Governor Gavin Newsom signed into law) Assembly Bill 565 to adopt virtual representation. AB 565, which was cemented into the California Probate Code as the new and improved Probate Code section 15804 on January 1, 2026, brings California into the fold of 47 other states that have already codified so-called “virtual representation” of interested parties and trust beneficiaries, including those beneficiaries who are minors, incapacitated, unborn, or unknown (MIUUs).
As a result of this new law, administrators and litigators in the trusts and estates neck of the woods will see significant changes to the circumstances in which courts typically require the appointments of guardians ad litem for MIUUs throughout the trust administration process.
Before we dive into the intricacies of the riveting new law, let us set the stage for what we mean by “virtual representation” and how the “old” law used to work.
What do we mean by “virtual representation”?
Virtual representation refers to the legal principle of allowing one party, or “representative” to act on behalf of another. Most commonly, this arises in trust matters where a beneficiary of a trust is a MIUU at the time of administration or litigation. The representative, usually after obtaining written consent or authorization from the represented individual, steps into the shoes of the represented individual and ‘virtually’ upholds their legal interests. If the representative is given proper notice of a change in trustee (§16061.7), the represented individual is on proper notice; if the representative consents to a trust modification (§15404), the represented party consents to the modification, and so on.
This system seeks to strike the right balance between protection for vulnerable members of the community and judicial efficiency within the probate courts.
The probate court process involving MIUUs pre-AB 565 looked quite a bit different from what it will going forward. The existing Probate Code provides that trustees have a duty to keep beneficiaries of a trust reasonably informed of the trust and its administration (§16060), to provide any and all beneficiaries the terms of the trust (§16060.7), to provide an annual accounting (§16062), and to serve beneficiaries with proper notice of various actions, such as a trust becoming irrevocable after the death of a settlor (§16061.7). Pre-AB 565, or “old section 15804” provided that when notice was required to be given to a beneficiary, or a person interested in a trust, notice given to certain specified other individuals may be sufficient to comply with proper notice requirements.
Alright…but what does that really mean? In order to save you from the re-reading and head-scratching, let me provide some examples for the three types of representation under the old section 15804(a):
Example 1: If a trust instrument left everything to the settlor’s children and grandchildren by right of representation, then Probate Code Section 15804(a)(1) means that only the settlors’ currently living issue who now would take by right of representation need be given notice. As such, if Bobby is still alive, then there is no need to give notice to Bobby Jr.
Example 2: If a trust instrument left everything to a child (i.e., Bobby) upon him attaining the age of thirty, and if the child fails to make it to 30 years old then the balance would go to his children (i.e., Bobby, Jr.), then under old Probate Code section 15804(a)(2), there is no need to provide separate notice to Bobby Jr. so long as Bobby is still alive.
Example 3: If an irrevocable trust provided the settlor’s friend with a terminating distribution upon the settlor’s death with no surviving issue, then old Probate Code section 15804(a)(3) meant that only the settlor’s living issue needed be given notice (and not the friend while the settlor has living issue).
The old statute was hard to read, harder to understand, and had relatively narrow applicability for those who could understand it.
A major hole in the old law is that it did NOT include MIUUs. Because an MIUU cannot legally consent to or be on notice of actions regarding the administration of a trust on their own, any action taken throughout administration such as a modification or any notification described above required court approval, or the appointment of a guardian ad litem (an individual specifically appointed to represent a minor or incapacitated individual’s interests in a legal proceeding). This additional step in the notification or consent process was unnecessarily costly and time-consuming for probate courts already back-logged and stretched thin.
Welcome to the shiny new virtual representation statute!
Enter AB 565. The “new Section 15804” established the permissible representation by parents of minor children (§ 15804(e)(1)), conservators of conservatees (§ 15804(e)(2)), guardians of minor ward (§ 15804(e)(3)), and of incapacitated persons, persons subsequently born, and unidentified or unknown persons by persons with a substantially identical interest. (§15804(f).)
Under the specific language of the law “notice [given] to a person who may represent and bind another person pursuant to this section is sufficient to comply with [notice requirements], and has the same effect as if notice were given to the represented person.” (§15804(a).)
Additionally, after a represented person gives consent in writing to the representation, the consent of the representative in a trust administration or litigation proceeding is binding on the represented person. (§15804(c)(1-2).)
The law, however, still bars an individual from representing another person, including MIUUs, where there is a conflict of interest or where a settlor is attempting to represent a beneficiary of the trust. (§15804(b)(1-2).)
So how exactly will this affect court proceedings?
The new law makes clear that this amendment to the Probate Code does NOT affect the availability of a guardian ad litem pursuant to Section 1003, nor the requirements for notice in proceedings where (1) a person has requested special notice, (2) a person has filed a notice of appearance, or (3) where a particular person or entity is required by statute to be given notice (§15804(i)).
But this new law will streamline matters involving represented persons. If, for example, there is a clear and obvious error in a trust instrument that requires a trust modification, then notice of the petition to modify the trust can be given to Bobby, the parent, even though his 2-year-old son, Bobby Jr., is the beneficiary. In the old days, this would have required the additional step of appointing Bobby as the guardian ad litem, but that extra step is excused by this new law.
To summarize, the passage of AB 565 will greatly limit the circumstances in which trust and estate administrators and litigators will need to seek court approval or appointments of guardians ad litem for routine trust administration matters when an MIUU is a beneficiary. In practice, this new law may succeed in freeing up court resources while ensuring that vulnerable beneficiaries are adequately represented, reducing delay and cost in routine trust administration matters.