By Celine Wyman

When the California Probate Code calls for the consent of or notice to “all beneficiaries,” the question arises as to how to notice/obtain consent of those who may be minors, the unborn, the incapacitated, or the unknown. The doctrine of “virtual representation” facilitates a path forward by allowing notice requirements to be met without having to track-down and notify every potentially interested person, and by binding those virtually represented individuals so that they can’t later attack the proposed action, such as a trust termination or modification. This doctrine, codified in California Probate Code Section 15804, has recently been expanded by AB 565, California’s Virtual Representation Bill, which was signed into law on July 1, 2025, and which becomes effective on January 1, 2026.

As a result of the Bill, Code Section 15804 has been completely rewritten. The new Section 15804 is much clearer and more permissive than the former. It leans into its core premise, that a competent adult may represent and bind those who cannot represent themselves, so long as there is no conflict of interest between them. Among other things, it provides that a parent can represent and bind the interests of their minor children (if no guardian ad litem has been appointed), a conservator of an estate can represent and bind a conservatee, a trustee can represent and bind the beneficiaries of a trust, and a personal representative can represent and bind those interested in the estate. In addition, a minor, a person not yet born, an incapacitated person, or an unknown person may be represented and bound by a person whose interest in the matter is “substantially identical” to the represented individual (unless such individual is already otherwise represented).
PARKER

The new text provides only two outright prohibitions against a person virtually representing and binding another: (1) if during the representation, there is a conflict of interest between the representative and the represented regarding the subject of the representation; and (2) the representation of a beneficiary by a settlor regarding the termination or modification of an irrevocable trust.

Any consent on behalf of another person must be made in writing and is binding on the represented person unless such represented person objects before the consent becomes effective. A fiduciary acting in reliance on the written representation is not liable for any resulting loss except if the fiduciary commits a breach of trust intentionally, with gross negligence, in bad faith, or with reckless indifference to the interests of the beneficiary.