The Role of the Ad Litem
in
Heirship Proceedings
Under §53(c) of the Probate Code
Steve M. King
Judge
Tarrant County Probate Court Number One
Fort Worth, Texas
I. Introduction
Effective September 1, 2001, the appointment of an Attorney Ad Litem and Citation by Publication will be mandatory in all heirship determinations.
This outline and materials are designed to assist the practicioner in adequately representing his or her clients, even though they will never meet them and (in most instances) they will not “exist,” except in a legal fiction.
II. Statutory Bases for Procedure
§ 34A.
Attorneys Ad Litem
Except
as provided by Section 53(c) of this code, the judge of a probate court may appoint an
attorney ad litem to represent the interests of a person having a legal
disability, a nonresident, an unborn or unascertained person, or an unknown
heir in any probate proceeding. Each
attorney ad litem appointed under this section is entitled to reasonable
compensation for services in the amount set by the court and to be taxed as
costs in the proceeding.
§ 49.
Who May Institute Proceedings to Declare Heirship
(b) … The unknown heirs of such decedent, all
persons who are named in the application as heirs of such decedent…shall be
made parties in such proceeding.
§ 50.
Notice
(b) … To determine whether there are any other
heirs, citation shall also be served on unknown heirs by publication in the
manner provided by this subsection.
(e) A
parent, managing conservator, guardian, attorney ad litem, or guardian ad litem
of a distributee who is at least 12 years of age but younger than 19 years of
age may not waive citation required to be served on the distributee under this
section,
§ 53.
Evidence; Unknown Parties
(c) The
court shall appoint an attorney ad litem to represent the interests of unknown
heirs.
III. What Is And What Is Not Included:
In this court, “heirship determinations,” for purposes of §53(c) appointments, will include:
1) heirship determinations incident to a dependent administration;
2) heirship determinations where no other administration is sought or pending;
3) heirship determinations pursuant to declaratory judgment actions where it is necessary to determine heirs because of intestacy under a will, trust or other instrument, etc.
It will not include (and no mandatory ad litem appointment will be made) in §145(e) actions where an intestate independent administration is sought and clear and convincing evidence as to heirship has been provided pursuant to §145(g).
IV. Duties of the Attorney Ad Litem in
Heirship Proceedings
Fact situations in heirship can vary like snowflakes. The decedent may range from a twenty-something with only a surviving spouse and no children to an elderly recluse with no known relatives to a wealthy and elderly person with numerous collateral relatives, none of whom were physically or emotionally close to the decedent.
As with all Ad Litem appointments, common sense must be employed, given the size of the estate and the apparent simplicity or complexity of the facts.
In verifying the facts you are given, you have just become a genealogist/skip tracer. Using appropriate forms to record your data, obtain as much additional information as possible to build a family tree, including identity and location information on all family members (not just heirs), with dates and explore your leads. The two basic forms are a Pedigree Chart and a Family Sheet (see attached).
In complicated cases, a fair amount of deductive reasoning and intuition must sometimes be employed. Having every little scrap of information recorded and before you can be invaluable. If the record keeping gets too cumbersome, specialized genealogy programs such as Family Tree Maker© can be a lifesaver.
If your principal job is to verify the sworn pleadings of the Applicant (and for which you are receiving the capitated $350.00 fee) You should be furnished with all necessary documentation and information by counsel for the Applicant.
In more or less sequential order, the due diligence list should include:
1. Obtain copies and review all relevant pleadings and the published citation. Remember that citation by publication is now mandatory).
2. Get copies of the death certificate and any other ‘official’ documentation affecting descent and distribution (divorce decrees, judgments of adoption, termination orders, etc.), but ask to see the certified copies for comparison purposes.
3. File an Answer on behalf of your clients. This ‘joins the issues’ and properly gets you in court.
4. Contact the applicant's attorney to obtain names of persons who might be knowledgeable of the facts of heirship.
5. Personally interview the Applicant to verify the heirship facts and obtain the names and whereabouts of persons knowledgeable of the heirship facts.
6. Contact at least two disinterested persons, if not all of the persons known to have knowledge of the heirship facts (not just the one you may be referred to by family) and verify the information provided.
7. Check back with the court periodically. The court should give you some guidance as to how much time should be spent, even in a complicated case. In an appropriate case, consider seeking security for costs.
§ 12. Costs and Security Therefor
(a) Applicability
of Laws Regulating Costs. The provisions of law regulating costs in ordinary civil
cases shall apply to all matters in probate when not expressly provided for in
this Code.
(b) Security for
Costs Required, When. When any person other than the personal representative of
an estate files an application, complaint, or opposition in relation to the
estate, he may be required by the clerk to give security for the probable cost
of such proceeding before filing the same;
or any one interested in the estate, or any officer of the court, may,
at any time before the trial of such application, complaint, or opposition,
obtain from the court, upon written motion, an order requiring such party to
give security for the probable costs of such proceeding. The rules governing civil suits in the
county court respecting this subject shall control in such cases.
(c) Suit for
Fiduciary. No security for
costs shall be required of an executor or administrator appointed by a court of
this state in any suit brought by him in his fiduciary character.
8. Be professionally skeptical. Remember that old Russian proverb, a favorite phrase of both Lenin and Gorbachev, quoted by President Reagan during the disarmament talks with the Soviet Union in the 1980s: "Doveryay, no proveryay" (Trust but verify)
Make an independent determination (if appropriate) whether the information provided is sufficient, whether there are persons not listed in the application, whether intentionally or unintentionally omitted, who may be minors, otherwise incapacitated or whose identity or whereabouts may be unknown. It is always necessary for the Ad Litem to ask the impolite questions: whether there were any other marriages, whether there were any other children (born in or out of wedlock), etc. (the ‘Smell Test’).
9. Send a letter by certified mail, return receipt requested, to all of your clients whom you are able to locate, informing them of the heirship proceeding, that they may have an interest in the decedent's estate and to contact you. Seek to obtain waivers of citation from each of them.
10. File a written report of your findings when you have completed your investigation, including a distribution chart for the court (see attached).
11. If you have located a §53 heir whose name or whereabouts was previously unknown, include all contact information for each such individual in your report, with a copy of the report to all counsel.
12. At this point, if you have found an “unknown heir,” the applicant should be preparing an amended application to determine heirship. If they are unwilling to do so, consider seeking security for costs. TEX. PROB. CODE ANN. §12 or setting a conference with the court.
13. Confer with applicant's attorney as to an appropriate date for the hearing on the application.
14. Attend the hearing and represent your clients. Make sure the attorney for the Applicant has accurately reflected the names and locations of the heirs and has correctly calculated the distribution in the proposed judgment. Don’t simply say: “No questions.”
15. File an Application for Payment of Fees and Order and seek discharge of the appointment as Attorney Ad Litem. (see attached) You will receive a fee of $350 unless the Court has previously determined that additional time is required due to the circumstances of the particular matter. If so, you should file an itemized Application for Payment of Fees with a narrative of time expended and services rendered.
Good Hunting!
DIVISION OF PROPERTY UPON INTESTACY IN TEXAS
I. COMMUNITY PROPERTY (Section 45, Texas Probate Code)
1. With surviving spouse, and children (or their descendants):
a) where surviving spouse and decedent are parents of all children
surviving spouse --------------- All
b) where surviving spouse and decedent are not the parents of all children:
surviving spouse --------------- 1/2
children or their descendants --------------- 1/2
2. With surviving spouse only
surviving spouse --------------- All
3. With children or their descendants only
children or their descendants --------------- All
II. SEPARATE PROPERTY (Section 38, Texas Probate Code)
1. With
surviving spouse (Section 38(b)):
A) With Children or their descendants
1) Pers Prop: a) Surviving spouse --------------- 1/3
b) Children and their descendants --------------- 2/3
2) Real Prop: a) Surviving spouse has life interest in --------------- 1/3
(with remainder to children and their descendants)
b) Children and their descendants have fee in --------------- 2/3
B) Without Children or their descendants
1) Pers Prop: Surviving spouse --------------- All
2) Real Prop: a) Surviving spouse has fee in --------------- 1/2
b) 1) Both Parents Survive: Father --------------- 1/4
& Mother --------------- 1/4
or 2) One Parent Surviving --------------- 1/4
& Siblings and their descendants --------------- 1/4
or 3) One Parent Surviving alone --------------- 1/2
or 4) Siblings and their descendants alone --------------- 1/2
or 5) Surviving spouse alone --------------- All
2. Without Surviving Spouse (Section 38(a)):
A) With Children or their descendants: Children & their descendants --------------- All
B) Without Children or their descendants:
1) Both Parents Survive: Father --------------- 1/2
& Mother --------------- 1/2
or 2) One Parent Surviving --------------- 1/2
& Siblings and their descendants --------------- 1/2
or 3) One Parent Surviving alone --------------- All
or 4) Siblings and their descendants alone --------------- All
or 5) a) Paternal Kin: 1) Both G/prnts: G/F--------------- 1/4
& G/M --------------- 1/4
or 2) One G/P Surviving --------------- 1/4
& Desc of deceased G/P --------------- 1/4
or 3) One G/P Surviving alone --------------- 1/2
or 4) Desc. of deceased G/P alone--------------- 1/2
& b) Maternal Kin:--------------- other half in same order
-
Courtesy Judge Steve M. King
No.___________
IN RE: ESTATE OF § PROBATE COURT
§
, § NUMBER ONE
§
DECEASED § TARRANT COUNTY, TEXAS
Answer of Attorney Ad Litem
Now comes , a practicing attorney in Tarrant County, Texas, having been appointed by this Court as Attorney Ad Litem for the unknown heirs of , deceased, pursuant to §53(c) of the Texas Probate Code and makes and files this his Original Answer to the Application to Determine Heirship and respectfully shows this Court the following:
I.
Your Attorney Ad Litem asserts a General Denial and respectfully requests that ther Court require the Applicant to prove all claims, charges and allegations by a preponderance of the evidence as required by the Constitution and Laws of the State of Texas.
II.
Your Attorney Ad Litem reserves the right to amend and answer further in this proceeding in the manner authorized by the Texas Rules of Civil Procedure.
WHEREFORE, PREMISES CONSIDERED, ___________________, Attorney Ad Litem, duly appointed by this court to represent the interests of the unknown heirs of the decedent herein, prays that the Applicant take nothing, that costs be adjudged against the Applicant; and that he go hence without day.
Dated: _______________________
Respectfully submitted,
_____________________________________
Name
Bar Card No.
Address
Telephone
Fax
Attorney Ad Litem
CERTIFICATE OF SERVICE
I, ______________________, certify that the foregoing instrument was sent by ____________ by me to ____________________, attorney for the Applicant herein.
_______________________________
No.___________
IN RE: ESTATE OF § PROBATE COURT
§
, § NUMBER ONE
§
DECEASED § TARRANT COUNTY, TEXAS
Report of Attorney Ad Litem
TO THE HONORABLE JUDGE OF SAID COURT:
Now comes , a practicing attorney in Tarrant County, Texas, having been appointed by this Court as Attorney Ad Litem for the unknown heirs of , deceased, pursuant to §53(c) of the Texas Probate Code and makes and files this report to the Court as follows:
1. As Attorney Ad Litem, I received a file-marked copy of the ___(Application for Determination of Heirship (or as appropriate)__ filed in this matter. I reviewed copies of the documents on file furnished by the Court and met with the attorney for the Applicant herein.
2. On or about , I filed an Answer with this Court on behalf of the unknown heirs.
3. On or about , I contacted Counsel for the Applicant, requesting further information concerning the Decedent’s personal history and family background.
4. I have contacted the following persons to verify the information provided in the __(Application)__ and to determine the existence and location, as applicable, of any unknown heirs of the Decedent.
A. __________________________ (relation to Decedent)
B. __________________________ (relation to Decedent) Etc.
5. Based on the above-described information and my investigation, your Attorney Ad Litem is of the opinion that the __(Application)__ is a true, correct and complete listing of the heirs of the Decedent; that the respective shares are correctly reflected, and that there are no unknown heirs, minors, incompetents or heirs with a legal disability, other than as shown in the __(Application)__.
or
Based on the above-described information and my investigation, your Attorney Ad Litem is of the opinion that a true, correct and complete listing of the heirs of the Decedent and their respective shares are correctly reflected on the attached Exhibits to this Report.
Additionally, ____________________ (Give a detailed, written synopsis of your investigation, your findings and recommendations.
Dated: _______________________
Respectfully submitted,
_____________________________________Attorney Ad Litem
Exhibit “A” to Attorney Ad Litem’s Report
HORACE VANDERGELDER
(Decedent)
Born April 14, 1896, Menlo Park, Ill. to Isaac VanDerGelder and Fannie Cooke
Died February 23, 1988, Fort Worth, Tarrant County, Texas (Exhibit A-1)
Married
1. Dolly Levi
(deceased) (Exhibit A-2)
A. Cornelius
M. VanDerGelder (deceased) (Exhibit A-3) ((.1111) + (½ of .1111) =
.1666)
I. Annie May VanDerGelder Riddle (deceased) (Exhibit A-4)(.1666)
a. Nelson Van Riddle .0833
b. Ima Riddle .0833
B. Margaret
V. Wolff (deceased) (Exhibit A-5) ((.1111) + (½ of .1111) =
.1666)
I. Francis Scott VanDerGelder (deceased) (Exhibit A-6) (.1666)
a. Alice Marie V. Wilson .0555
b. Edmund P. VanDerGelder (deceased) (Exhibit A-7) (.0555)
i. Moon Unit VanDerGelder Zappa .0555
c. Rosamond V. Brecht .0555
C. Edmund
Sidney VanderGelder (deceased, no
issue) (Exhibit A-8) (.1111)
2. Fannie Brice
(deceased) (Exhibit A-9)
A. Virginia
Brice VanDerGelder (deceased) (Exhibit A-10)(.1111)
I. Edward Bruce VanDerGelder .0370
II. Theodore R. VanDerGelder .0370
III. A. B. VanDerGelder (deceased no issue) (Exhibit A-11)
IV. Zoe V. Fotescu .0370
B. Albert
Sidney VanDerGelder (deceased) (Exhibit A-12) (.1111)
I. Francesca VanDerGelder Critz .0555
II. Augustus McRae VanDerGelder .0555
3. Sarah Bromhead
(deceased) (Exhibit A-13)
A. Rupert VanderGelder .1111
B. Gonville B.VanDerGelder .1111
C. R. E. L.
VanDerGelder (survived Decedent, now deceased) (Exhibit A-14) .1111
D. U. S. Grant
VanderGelder .1111
1.0000
EXHIBIT LIST
A-1 Certified copy of death certificate of Horace VanderGelder, February 23, 1988, Fort Worth, Tarrant County, Texas
A-2 Probate Proceeding of ________________, Cause #________, Pawtuxent County Court,
Pawtuxent, Missouri.
A-3 Family History Affidavit given by __________________ of ________________, on ______.
Mr. ____________ was the county School Superintendent of _________ County for 34 years.
A-4 (Repeat as required)
Exhibit “B” to Attorney Ad Litem’s Report
Heirs of Horace
Vandergelder, Deceased
Nelson Van Riddle great grandson 8.33% of all real and personal
334 Audubon property
River Valley, New Mexico 98565
Ima Riddle great granddaughter 8.33% of all real and personal
1 Enigma Lane property
Hidden Valley, AZ 87552
(repeat
as indicated)
U. S. Grant VanderGelder son 11.11% of all real and personal
223 Grants Tomb Rd. property
Ottumwa, Iowa 56981
100.00%
Tips for finding the Elusive Person
(Living
or Otherwise)
I. In all cases:
