By Steven C. Fraser, Esq. | FL Bar No. 625825 | DC Bar No. 460026
Probate is a proceeding in which someone is often missing from the room: a minor with an interest, a person who lacks capacity, a beneficiary whose address no one knows, or an estate with no one left to speak for it. Florida Probate Rule 5.120 is the rule that lets the court fill that gap with an administrator ad litem or a guardian ad litem. It was among the forty rules in the Supreme Court's June 25, 2026 cleanup order, covered in an earlier post. The rule history for 2026 says that subdivision (a) was reorganized and the committee notes were revised. This post walks through the rule as it now reads.
Subdivision (a): when the court may appoint
The rule distinguishes two kinds of appointment.
A guardian ad litem may be appointed at any point in a proceeding to represent the interests of an incapacitated person, an unborn or unascertained person, a minor or any other person under a legal disability, a person with a developmental disability, or a person whose identity or address is unknown, if the court determines that representation of the interest otherwise would be inadequate.
An administrator ad litem or guardian ad litem may be appointed, without bond or notice for that particular proceeding, when it is necessary that the estate of a decedent or a ward be represented in any probate or guardianship proceeding and:
- there is no personal representative of the estate or guardian of the ward;
- the personal representative or guardian is or may be interested adversely to the estate or ward, or is enforcing his or her own debt or claim against the estate or ward; or
- the necessity arises otherwise.
Section 733.308, Florida Statutes, which I checked against the current text, is the statutory counterpart: when an estate must be represented and the personal representative is unable to do so, the court appoints an administrator ad litem without bond, and the fact that the personal representative is seeking reimbursement for claims against the decedent does not by itself require appointment. Rule 5.120(g) says the same thing about reimbursement.
Two further points in subdivision (a). If there is no conflict of interest, one guardian ad litem may be appointed to represent several persons or interests. And the appointee must file an oath to discharge all duties faithfully and is qualified to act on filing. No process is served on the appointee, but the appointee must appear and defend as directed by the court.
Subdivision (b): the petition
A petition for appointment of a guardian ad litem must state, to the best of the petitioner's information and belief:
- the initials and residence address of each minor, person with a developmental disability, or incapacitated person, and the year of birth of each minor with an interest in the proceedings;
- the name and address of any appointed guardian;
- the name and residence address of any living natural guardians having legal custody;
- a description of the interest in the proceedings of each such person; and
- the facts showing the necessity for the appointment.
Note the use of initials and year of birth for minors. The rule's 2014 revision conformed this subdivision to the Court's rule on minimizing sensitive information in filings.
Subdivisions (c) and (e): two 10-day service deadlines
These are the deadlines that get missed.
- Guardian ad litem (c). Within 10 days after appointment, the petitioner must serve conformed copies of the petition and order on any guardian, or if there is no guardian, on the living natural guardians or the one with legal custody of the minor, person with a developmental disability, or incapacitated person.
- Administrator ad litem (e). Within 10 days after appointment, the petitioner must serve the petition and order on the attorney of record of each beneficiary and on each known beneficiary not represented by an attorney of record.
Subdivisions (d), (f), and (g)
The guardian ad litem must serve any written report or finding, the petition for compensation and discharge, and the notice of hearing on the same people entitled to service under (c). Any judgment or relief recovered by an administrator or guardian ad litem is enforced like other judgments, with execution issued for the use of the estate or ward and the money paid to the personal representative or guardian or as the court orders.
Practical points
- Name the basis. A petition that rests on the personal representative's adverse interest should say so under the conflict language, and one that rests on the absence of a personal representative should say that.
- Calendar the 10 days from the date of the order, not the date of filing, and track (c) and (e) separately.
- Use initials and birth year for minors, as the rule directs.
- Re-read the subdivision structure in the current edition before pin-citing, since the 2026 revision reorganized subdivision (a).
Why this is worth an article
The ad litem appointment is a small procedural step that carries a large consequence: someone who would otherwise have no voice gets one, and a personal representative with a conflict is kept from deciding their own claim. A petition that tracks the rule's language, and service done within 10 days, keeps that step from being the thing that is argued about later.
Source: Florida Probate Rules (The Florida Bar), October 1, 2026 edition, Rule 5.120 and rule history; Section 733.308, Florida Statutes (2026); In re Amendments to Florida Probate Rules, No. SC2025-1478 (Fla. June 25, 2026).
Steven C. Fraser is admitted in the District of Columbia (1998) and Florida (2003) and practices in bankruptcy, tax controversy, consumer protection, probate, and related litigation. This article summarizes a published court rule and statute. It is not legal advice, and it is not an opinion on any particular estate.