The Role of the Ad Litem
Under §53(c) of the Probate Code
Steve M. King
Tarrant County Probate Court Number One
Fort Worth, Texas
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.
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
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
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:
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.
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.
Bar Card No.
Attorney Ad Litem
CERTIFICATE OF SERVICE
I, ______________________, certify that the foregoing instrument was sent by ____________ by me to ____________________, attorney for the Applicant herein.
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)__.
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.
_____________________________________Attorney Ad Litem
Exhibit “A” to Attorney Ad Litem’s Report
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)
(deceased) (Exhibit A-2)
M. VanDerGelder (deceased) (Exhibit A-3) ((.1111) + (½ of .1111) =
Annie May VanDerGelder Riddle (deceased) (Exhibit A-4)(.1666)
a. Nelson Van Riddle .0833
b. Ima Riddle .0833
V. Wolff (deceased) (Exhibit A-5) ((.1111) + (½ of .1111) =
Francis Scott VanDerGelder (deceased) (Exhibit A-6) (.1666)
a. Alice Marie V. Wilson .0555
Edmund P. VanDerGelder (deceased) (Exhibit A-7) (.0555)
i. Moon Unit VanDerGelder Zappa .0555
c. Rosamond V. Brecht .0555
Sidney VanderGelder (deceased, no
issue) (Exhibit A-8) (.1111)
(deceased) (Exhibit A-9)
Brice VanDerGelder (deceased) (Exhibit A-10)(.1111)
I. Edward Bruce VanDerGelder .0370
II. Theodore R. VanDerGelder .0370
A. B. VanDerGelder (deceased no issue) (Exhibit A-11)
IV. Zoe V. Fotescu .0370
Sidney VanDerGelder (deceased) (Exhibit A-12) (.1111)
I. Francesca VanDerGelder Critz .0555
II. Augustus McRae VanDerGelder .0555
(deceased) (Exhibit A-13)
A. Rupert VanderGelder .1111
B. Gonville B.VanDerGelder .1111
R. E. L.
VanDerGelder (survived Decedent, now deceased) (Exhibit A-14) .1111
D. U. S. Grant VanderGelder .1111
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,
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
Tips for finding the Elusive Person
(Living or Otherwise)
I. In all cases:
1. Name: get as complete a name as possible (court records)
2. Telephone Number: is it in the court records for ward and/or guardian?
A. Current telephone directory for ward and/or guardian.
B. 411 operator for directory assistance
C. Internet telephone listings
Hotbot white pages
(includes reverse directory)
A. Current Telephone directory
B. City Directory or Criss-Cross Directory (Cole’s Directory or equivalent)
1. Determine from City Directories how long the person was in town (look every 4 to 5 years until they are no longer listed, then go back year by year until they appear again).
2. When subject disappears from the directories, try looking at the Death Certificate Index for the year previous to the last directory listing and succeeding years.
3. Copy names of neighbors at last known address from directory and see if they are still listed in the current telephone directory. They might have kept up with your subject.
4. Government Records: A Potpourri
A. Municipal Level: Birth & Death records (see also county & state)/ Court records, citations, tickets / Medical Examiner, Autopsy records/ Doctor's records/ Funeral home records / Accident Reports / dog, cat and exotic animal licenses/ Health Department food handling records/ Public Library (local history section) obituary records
B. County Level: JP court records(citations and returns, especially)/ County Clerk: Deed records (including heirship affidavits); Birth and Death records (unincorporated areas); Marriage records, Assumed name records; Powers of Attorney filings; UCC filings; Court Registry records; / County Court Records (citations and returns, especially) / County Court at :Law Records (citations and returns, especially) / Commissioners Court Records / Probate Court Records / Voter Registration records / Ad Valorem Tax Records (check out appraisal district websites) / District Clerk: Civil and Criminal District Court records (citations and returns, especially); Divorce Court records; Child Support decrees (which have Social Security Numbers); District Attorney's office, District Attorney's Investigator
C. School Districts alumni associations and directories / school records / Relatives / former neighbors/ classmates / school clubs
D. State records
1. Texas Dept of Health/Bur. of Vital Statistics www.tdh.state.tx.us/bvs/default.htm (but better initial access is through www.rootsweb.com 2. Texas Comptroller of Public Accounts: Abandoned property records 3. State-Licensed Occupational Agencies (c. 100 professions) 4. State Associations (legal/medical/ banker/ pest control/ barber/etc.) 5. Secretary of State: Corporate/ Unincorporated Assn's/ Notary records 6. Vehicle-related: Car/Boat/trailer/ Airplane Registration / Body History records 7. Driver's License and Driving Record www.txdps.state.tx.us 8. Concealed Handgun permits 9. TP&W/Hunting license 10. Worker's comp records
E. Federal records 1. Social Security Death Index theoretically accessible online from the Social Security Administration. Better accessed through either www.ancestry.com/ or www.rootsweb.com. Current through last month. 2. Federal Court records, Bankruptcy records 3. Peace Corps 4. FAA: pilot's licenses/ medical records 5. ICC (truckers) 6. Passport applications 7. Civil Service records on Govt personnel 8. USPO business address (physical address FOIA request) 9. Military/ Armed Services Child Support Locator / military records / active duty locator 10. VA locator service 11. National Archives www.nara.gov Federal records center in Fort Worth: Genealogy/ Indians/ land records/ naturalization records/ immigrant ship passenger lists/ Passport records/ Fed personnel records before 1940/ National Cemetery System 12. federal employees Child Support enforcement (fed and state) IRS assists them) 13. Foreign Consular Offices
5. Private Records
A. Newspapers – Both articles about the subject person(s) and Obituaries / Check the Obituary Index card file / Look in newspapers for several days after death dates for obituaries and use them to determine survivors. Use same techniques as above to locate these people.
B. Salvation Army ($10.00 search fee)
C. Credit bureaus: order a credit history
D. Historical/Genealogical Societies
E. Service Clubs/Fraternal Associations
6. The Web
Internet Background Check www.infotel.net/checkmate
Public Data Search Service (fee) www.publicdata.com
Texas DPS DMV Record Search (fee) www.txdps.state.tx.us
Adoptee Search Site www.best.com/~damsel/library/search.htm
Mapquest (put in an address, get a map!) www.mapquest.com
Ameridex Information Systems (fee) www.kadima.com
Stalker’s Homepage (lots of info) www.glr.com/stalk.html
Houston Trial Lawyer's Assoc. (Outstanding!!!) www.htla.com
San Bernadino County (Cal.) Coroner’s Dept www.unclaimedpersons.com
Newspaper and Media Research (worldwide) www.ecola.com
Best Genealogy links (30,000+) www.cyndislist.com
Contact insurance companies for possible proceeds www.lifesearch.net/index.htm
7. Hire a Pro: (No warranties, express or implied from this list.)
Culligan, Joe, author of You Too Can Find Anybody www.joeculligan.com
8. Amusing sites: Dead People Server: http://dpsinfo.com/dps.html
Harrison County Hist Soc. www.three-legged-willie.org
IN RE: THE ESTATE OF § PROBATE COURT NUMBER ________
, DECEASED § TARRANT COUNTY, TEXAS
SWORN STATEMENT OF SERVICES AND EXPENSES BY ATTORNEY AD LITEM
IN HEIRSHIP DETERMINATION
On this day personally appeared , (“Attorney Ad Litem”) known to me, who first being duly sworn upon oath to tell the truth, deposed and stated:
I am an attorney licensed to practice law in the State of Texas and appointed by the Court in this cause to represent unknown heirs. I have performed all of the services required under the due diligence policy promulgated by the Probate Courts of this county.
I therefore request the following fees and expenses for my representation:
Attorney Ad Litem fee $ 350.00
Expenses and reimbursement requested. (Attach proof and explanation) $______
Total of Attorney's Fees and Expenses Requested: $______
Signature : ________________________________ Taxpayer ID/SS#: _____________________
Address: ________________________________ Bar Card #: __________________________
________________________________ Phone Number:_______________________
Subscribed and Sworn to before me on _________________________.
Notary Public, State of Texas
On this day, the Court heard and considered the foregoing, and the Court finds that said Attorney Ad Litem has rendered necessary services on behalf of the unknown heirs of Decedent, that such Attorney's fees and expenses are reasonable and just, and should be paid.
It is therefore ORDERED, ADJUDGED, AND DECREED that said Attorney be paid the total sum of $________ to be taxed as costs against the Applicant herein and to be paid from funds held in the registry of this Court for such purpose, with any balance due to be paid by the Applicant herein within thirty (30) days of the date hereof.
It is further ORDERED, ADJUDGED, AND DECREED that this appointment is terminated and that the Attorney named herein is discharged as Ad Litem in this cause.
Signed this _______________________________.
Copyright 2000-2 by Glenn M. Karisch Last Revised March 1, 2002