When someone dies intestate, without a will, the Texas Estates Code provides guidance about how to determine the heirs of that estate and how to divide the estate. In a previous article, we provided a general outline for determining heirship in Texas. This article focuses more fully on the role of an Attorney Ad Litem in determining heirship, which may be simple and straightforward at times, but which may also be complex and time-consuming, depending on the intricacies of the family situation. Simple or complex, the work and reporting of the Ad Litem governs the distribution of an estate when someone dies intestate.
The below statutes govern the elements to determine heirship for an intestate estate in Texas.
An intestate Administration determines the legal heirs and the share of the estate each is to receive. TEX. EST. CODE § 202.002
A representative of the estate submits an application to determine heirship, which includes the information specified in TEX. EST. CODE § 202.005 as well as an affidavit verifying the full and complete truth of the facts submitted. All heirs who own some portion in the estate property become parties to the proceeding. Unknown heirs are included in the proceedings. The job of the Attorney Ad Litem is to find any unknown heirs and include them in the distribution of an estate.
According to TEX. EST. CODE § 51.001, heirs can be notified of the proceedings by certified mail. If contact information is unavailable, newspapers can publish a general citation to notify heirs. The general citation may also be posted in the county where the proceedings will occur or where the decedent most recently lived.
Appointment of Attorney Ad Litem
The court must appoint an Ad Litem when no one has responded to published citations or to represent unknown heirs. TEX.R.CIV. PROC. 244. An Attorney Ad Litem may also be appointed to represent those unable to represent themselves, such as a person with a legal disability, or those who are living but whose whereabouts are unknown. TEX. EST. CODE § 202.009. The Attorney Ad Litem is entitled to reasonable compensation for his or her work.
Evidence in Heirship
Proof of heirship can be delivered through live testimony by those who personally know the family’s history and relationship. Evidence can also be in the form of county records as long as those records have been on record for at least five years. TEX. EST. CODE § 203.001. Sometimes the court requests that the evidence be written, submitted, and sworn to. However, no separate statement of evidence is required unless no one has responded to published citation for determination of heirship. TEX. RULES CIV. PROC. 224.
To make a final judgement, one that may be appealed, an order must be filed which includes the names and address of the heirs and their shares and interest of real estate and personal property. In Addition, the order must note if proof of heirship is lacking in any way. TEX. EST. CODE § 202.001.
Different Types of Cases
Sometimes intestate proceedings are uncomplicated cases with a small number of obvious heirs, meaning that the Attorney Ad Litem simply verifies the accuracy of the application and any evidence submitted. By contrast, some cases require the Ad Litem to function as a genealogist and detective, working long hours to find missing or unknown heirs. The Ad Litem must also ask difficult questions, including questions about children born outside of marriage and common-law marriages.
Whether representing known or unknown heirs, the Ad Litem is charged with vigorously and thoroughly representing those who cannot represent themselves. According to TEX. EST. CODE § 53.104., an Attorney Ad Litem also has the authority to oppose any temporary Administrator in case that person does not have the client’s best interest at heart.
Due Diligence of the Attorney Ad Litem
The Ad Litem must contact the applicant’s attorney to get copies of the pleadings and relevant documents, such as birth and death certificates and contact information for all witnesses. In addition, the Ad Litem reaches out to all clients by certified mail to notify each of the upcoming proceedings, and/or seek waivers of citation.
The Ad Litem must then interview anyone with knowledge of the family history, including at least two people who hold no vested interest in the determination of heirship. After examining all evidence and ensuring that no information has been purposefully or accidentally omitted, she or he will make an independent determination of heirship which includes three components: It is a written report; it either supports or negates the applicant’s determination of heirship; it includes a concise explanation of the people interviewed and the evidence reviewed; it includes a distribution chart which clearly indicates the relationship of each heir to the decedent and the share of the estate for each heir.
The scope of the Attorney Ad Litem’s responsibility may vary from case to case, but uncovering all available information, with or without cooperation of known heirs, is critical when determining heirship of an intestate estate.
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