If under the terms of a written instrument, or otherwise, a person or persons of a designated class who are not ascertained or who are not in being, or a person or persons who are unknown, may be or may become legally or equitably interested in any property, real or personal, the court in which any action, petition or proceeding of any kind relative to or affecting the property is pending, may, upon the representation of any party thereto, or of any person interested, appoint a suitable person to appear and act therein as guardian ad litem of the person or persons not ascertained, not in being, or who are unknown; and the judgment, order or decree in the proceedings, made after the appointment, shall be conclusive upon all persons for whom the guardian ad litem was appointed. The guardian ad litem shall have power, with the approval of the court in which the action, petition or proceeding is pending, to compromise the same, to agree to the order or judgment to be entered therein for or against the persons for whom the guardian ad litem was appointed, and to satisfy any judgment or order in favor of the persons, or release, or discharge any claim of the persons pursuant to the compromise. The court shall have the same power with respect to the money or other property to be paid or delivered under such order or judgment as is provided in Section 372 of this code. The reasonable expenses of the guardian ad litem, including compensation and counsel fees, shall be determined by the court and paid as it may order, either out of the property or by plaintiff or petitioner. If the expenses are to be paid by the plaintiff or petitioner, execution therefor may issue in the name of the guardian ad litem.
§ 373.5.Guardian Ad Litem For Person Not Ascertained, Not In Being Or Unknown
Title 3. Of the Parties to Civil Actions · Chapter 3. Disability of Party · Last amended 1961 · Last verified July 28, 2026
In one sentenceSection 373.5 lets a court appoint a guardian ad litem to represent people with a possible legal or equitable interest in property who are not yet ascertained, not yet born, or unknown, and binds those unidentified persons to the resulting judgment.
Full Text of § 373.5
Plain-English Summary
Section 373.5 addresses a situation the ordinary guardian ad litem rules do not reach: litigation affecting the interests of people who cannot be identified at all, because they are not yet ascertained, not yet in being, or unknown -- a class of future beneficiaries under a trust, for example, or unborn heirs with a contingent interest in property. On the representation of any party or other interested person, the court may appoint a suitable guardian ad litem to appear and act for that class of unidentified interests.
The judgment, order, or decree entered after that appointment binds everyone the guardian ad litem represents, even though none of them could have appeared individually. The guardian ad litem's authority mirrors what § 372 gives a guardian ad litem for a known minor or incapacitated person -- the power, with court approval, to compromise the case, agree to judgment, and satisfy or release claims -- and money or property payable under the judgment is handled the same way § 372 requires.
The guardian ad litem's reasonable expenses, including compensation and counsel fees, are set by the court and paid either out of the property at issue or by the plaintiff or petitioner; if the plaintiff or petitioner must pay, execution can issue in the guardian ad litem's name to collect it.
Frequently Asked Questions
Can a lawsuit bind people who have not yet been born or identified?
Yes, when a court appoints a guardian ad litem under § 373.5 to represent a class of persons not ascertained, not in being, or unknown who may have a legal or equitable interest in the property at issue.
Does the guardian ad litem in this situation have the same settlement authority as an ordinary guardian ad litem?
Yes. Section 373.5 gives that guardian ad litem the same power, with court approval, to compromise the action and agree to judgment that § 372 gives a guardian ad litem for a known minor or person lacking capacity.
Who pays the guardian ad litem's fees under this section?
The court sets the reasonable expenses, including compensation and counsel fees, and orders them paid out of the property at issue or by the plaintiff or petitioner, with execution available against the plaintiff or petitioner if needed.
Amendment History
Amended by Stats. 1961, Ch. 435.
Source & verification. Section text is reproduced verbatim from
the Deering's California Codes Annotated / vLex. Enacted by the California Legislature.
Last verified July 28, 2026.
· Official source
Also known as: guardian ad litem unknown heirs californiaunborn beneficiaries lawsuit representationunascertained persons interest in property litigation