What does an attorney ad litem do in a Texas heirship case? - by Daniel L. O’Neil

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on 01 August 2016
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You are in an initial consultation with a fabulous Texas probate lawyer and as you discuss fees they mention the need to plan for the attorney ad litem (“AAL”) fees. So what exactly is an attorney ad litem? What does an attorney ad litem do in a Texas heirship case? And most important – why are you cutting the attorney ad litem a check a few months from now?

This continues our series on intestacy we began with “What happens without a valid Texas Will” , took a look at the Hickey boys, and then followed up with posts on musicians Prince  and Snoop Doog.

Well first of all, the appointment of the attorney ad litem in an heirship case is mandatory – the same as citation by publication is mandatory in a Texas heirship case. They provide a valuable public service when they are appointed by the judge.

The best way to think of the AAL in your Texas heirship case is as someone that checks your homework and makes sure it is correct. In ideal situations the AAL knows the law, reviews the paperwork, points our errors that need correcting, speaks with the two (or more) disinterested witnesses to determine their suitability to testify in open court, verifies that no Will is on deposit with the County Clerk (yes – some people do deposit their Will there for valid reasons!), otherwise confirms the information about the family history that the disinterested witnesses tell them about prior to the hearing, and shows up on time in court for the hearing with all of the necessary paperwork. The best AALs work with a gentle touch since of course, the family/friends/business partners etc. are still dealing with the loss of a loved one/someone important to them in one way or more.

The need for heirship determination is triggered most commonly when a Texan dies without a valid Will or leaves behind a (bad but valid) Will that creates a partial intestacy. Most people walking around town do not have “heirship” on their mind when their loved one passes away – it is usually going to be the bank, the life insurance company, the title company, or someone else that tells you to get a lawyer and get it sorted if the Decedent did not update (or ever put into place) their beneficiary designations. No matter which way the need for the heirship determination arises there are really two types of heirship cases once you get into it. The dichotomy here is subtly different than the kind of music that Bob’s Country Bunker usually has (“both kinds – country and western!”) but there are many similarities.

Country heirship cases:

The first, the most common, is called the “Plain Jane” kind of case – everyone tells the truth real honest and polite-like. The case is essentially just a simple straightforward verification of information. These cases look like: Decedent was married at time of death in a valid Texas marriage and left behind the surviving spouse as well as four kids that were all “of the marriage” born to the Decedent and the surviving spouse. Plain Jane and no surprises there. No two AALs bill the same way but prevailing standards are generally going to put the AAL’s fees in these kinds of cases in the $400-600 ballpark. There are some fantastic AALs in Harris County. The one I had most recently on an heirship case was polite to all of my witnesses, did his work timely, let me know what to expect on fees in the under-$500 category, worked with me to schedule the hearing at a time he knew he could make it there, and then actually showed up on time in court. That was a fantastic AAL. And when I receive court appointments I give as good as I want to receive on cases I am counsel on.

Western heirship cases:

The other cases, which are far less common, are less straightforward and more closely resemble a soap opera episode or classic Western film with the animosity that exists within some extended families. These are all over the map just because the specific facts greatly matter and no two are going to look completely identical – with the benefit of google searches and technology these cases look different in 2016 than they did in 2006, 1996, and 1986. Sometimes there is a surprising (to the family) claim for common law marriage from the pool boy, the yoga instructor, or the tennis pro. Sometimes the “black sheep” son (especially if they are a trans* man) of the family is conveniently forgotten by everyone you talk to, and you uncover there is another heir that is not reflected in any of the paperwork. The most surprising thing I have seen in my capacity as AAL is the Decedent left behind an out-of-state Will that was not valid – which created a number of problems for the administration end for the Applicant’s counsel, but had relatively little effect on the heirship  since the Will confirmed the identity of the heirs we thought we knew about – and even if the Will had been valid for other reasons they would have needed the heirship determination anyway since the Will had left a partial intestacy. There is a whole spectrum of other kinds of issues that involve all types of “family secrets” that I have always seen more as counsel than I have on the AAL side.

When your “family secrets” involve the big three of sexual orientation, gender identity, and gender expression you are in good hands with a lawyer at Frye, Oaks, Benavidez & O’Neil, PLLC as counsel because you do not need to explain yourself and your family. We are nonjudgmental and we give you a safe space to tell us what’s going on and we can advise you based on the truth – the truth we are sensitive to and have many years of experience handling compassionately and sensitively to protect your family and preserve the family legacy.

Frye, Oaks, Benavidez & O’Neil, PLLC: over 105 years of combined legal experience now under one roof.