Episode 443: What is an Attorney Ad Litem?

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Attorneys ad litem are important positions within the probate court system. An attorney ad litem can assist with representing those who cannot represent themselves, such as minor children, incapacitated individuals, and unknown heirs. A court appoints attorneys ad litem in different situations, such as heirship proceedings when there are potential unknown heirs to an estate.

Take the following scenario for example. a woman passes away and does not leave a will. The only known heir she has is her husband of many years. Because there is no will to follow, and a court must do its due diligence to determine all potential legal heirs, the court has to rule out the possibility of any children the woman may have had.  There is always the possibility that the woman had been married before, had a child, and gave up a child for a closed adoption, or that she had a child when she was very young that she did not raise and no one knows about. In a situation like this, an attorney ad litem is appointed to represent these possible children in an heirship proceeding, to explore the possibility there may be unknown children of the woman who do exist. However unlikely, the courts must make sure all known heirs are accounted for before allowing an executor or administrator of the estate to liquidate assets and disperse anything to known beneficiaries.

What Is an Attorney Ad Litem and What Do They Do?

In the case of heirship proceedings, the job of an ad litem attorney is to represent someone who cannot represent themselves. This includes people who are:

• Physically incapacitated
• Mentally incapacitated
• Legally incapacitated
• Minor children
• Unknown heirs who may not know about specific court proceedings

In the case of the last point, a court can say they are not sure if heirs (known or unknown) have notice of the probate proceedings, and the court will want to make sure the interests of all heirs are represented. To do this, the court will appoint an attorney ad litem. This type of lawyer is particularly helpful in the event that the deceased had no will, or the original copy of the will was lost, OR beneficiaries listed in the will cannot be found and are considered transient (homeless or have long lost contact with family and friends).

Without an original copy of the will, the law requires an heirship proceeding. An attorney ad litem is tasked with determining if there could be other individuals or unknown heirs out there. Typically, beneficiaries or acquaintances of the deceased can provide the names of some witnesses that are “disinterested” (i.e. not listed in the will or not intestate heirs). If these individuals have known the decedent or their family for many years, the disinterested witness may be able to share that the witness never knew of a will the deceased put together, or the witness might share that the person was married only one time, or that they absolutely never had children.

One case example includes a woman who passed away without a known will. Subsequently, the court could not find anyone from the woman’s childhood. However, the woman had lived in the same apartment for more than thirty years. An attorney ad litem was appointed by the court to investigate any potential heirs. The ad litem spoke with neighbors on both sides of the woman’s home who said they had never seen any visitors, only pets. An ad litem could feel fairly confident that the decedent  was not married and very likely had no children. That information would then be turned over to the judge who would make the final ruling based on the information the ad litem collected.

Finding an Attorney Ad Litem

All attorneys ad litem have to take some kind of qualifying coursework and be certified to practice as an ad litem. Certain kinds of ad litem work require ongoing certification training to keep up their certification.

Another frequently asked question is if parties can choose their own attorney ad litem. It may be possible for the parties to recommend to the court who they would like to work with. However, the court has their own list or “wheel” for the probate court system which will provide an attorney ad litem for an heirship case. Theoretically, the court is supposed to go down the list from one attorney to the next and the court will assign them as necessary.

Payment for Ad Litems

In Harris County probate court, there is a flat fee of seven hundred dollars paid to an attorney ad litem. These lawyers know going into the case that this will be their compensation.

That said, some ad litems will be required to put in hours and hours of work that go well beyond the scope of what one would consider worth seven hundred dollars of payment. While the court does allow an attorney ad litem to show all of the work they have done and ask for additional compensation, that is not common.

What to Know About Ad Litem Attorneys

One of the most important things to know about working with an attorney ad litem is to have open communication, which includes providing them with all the information and tools they need to effectively do their job. Lawyers in this capacity are not opposed to the case or any party necessarily, and they are not antagonistic to any party in particular. This type of legal representative is simply trying to ensure everyone is represented and that the court has all the information it needs in order to make a ruling.

Be warned that involving an ad litem in the case adds extra costs and time to the case, so it is beneficial to take steps to avoid having to have an ad litem. However, an attorney ad litem is required in some situations, such as heirships if there is no will, probate applications where there is only a copy of a will and known heirs cannot be found, or other specific situations like guardianships.

The bottom line is that attorneys ad litem can represent unknown heirs to the best of their abilities. After collecting as much relevant data as possible, they present that information to the court and then the court will determine what weight to give that information and if more work needs to be done.

If you have the need of an attorney ad litem’s services, you can be better equipped to help them by understanding their job description and exactly what they do for the court case.

By Harold "Hap" May, P.C. on August 9, 2024   /   The Legal Play Podcast   /   Leave a comment