Determination of Heirship: The Role of the Attorney ad Litem

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Determination of Heirship

The Role of the Attorney ad Litem

❧Heirship Proceedings

A Basic Overview

❧❧ Determine:

1. Heirs of a decedent, and2. Heirs’ respective shares and interests

Purpose (202.001)

❧❧ Decedent owned property in Texas, and

1. Intestacy & no administration yet, 2. Testate, but property omitted from will, or3. Trustee holding assets for deceased beneficiary.

Circumstances (202.002)

❧❧ PR of decedent’s estate,❧ Creditors,❧ Claimants,❧ Guardians,❧ Trustees, and❧ Party seeking Independent Administration under 401.003 (by

agreement of heirs).

Permitted Applicants (202.004)

❧❧ Anytime post death.❧ Residual 4 year SOL of CPRC 16.0151 does not apply.

When (202.0025)

❧❧ Prior Probate Proceeding – county where will probated or

administration pending, or❧ No Prior Probate Proceeding – 33.001 governs (usual venue

rules).

Where (33.004)

❧❧ Unknown heirs,❧ Known heirs, and❧ Owners of a share or interest in real property listed in

application.

Required Parties (202.008)

❧❧ No Service Required:

1. Parties to the application (202.055),2. Those who signed waivers (202.056), and 3. Those who filed answers (202.055).

❧ Registered or Certified Mail (202.0151):1. Distributees ≥ 12 yr2. Parent, managing conservator or guardian of distributees < 12 yr

❧ Publication (202.052): unknown heirs.❧ Posting (202.053): only if no publication under 202.052.

Notice

❧❧ Required (202.009):

1. Unknown heirs, and 2. Incapacitated heirs.

❧ Discretionary (53.104):1. Legal disability,2. Non-resident,3. Unborn or unascertained person, and4. Missing heir.

Attorney ad Litem

❧Duties

It is the duty of attorney ad litem to defend the rights of his involuntary client with the same vigor and astuteness he would employ in the defense of clients who had expressly employed him for such purpose. Estate of Tartt v. Harpold, 531 S.W.2d 696, 698 (Tex. App.-Houston [14th Dist.] 1975, writ ref'd n.r.e.) (quoting Madero v. Calzado, 281 S.W. 328 (Tex. Civ. App.-San Antonio 1926, writ dism'd)). Estate of Stanton, 2005 Tex. App. LEXIS 10901 (Tex. App. Tyler 2005, pet. denied).

❧❧ Usually by:

1. Fax, or2. Email.

❧ Update your contact info!

Notice of Appointment

❧Attorney ad Litem

You’ve been appointed, now what?

❧❧ 20 days, but ❧ Do it immediately.

Answer

❧Investigation

❧❧ Opposing Counsel:

1. Application & other pleadings,2. Relevant vital records (death, birth, divorce, etc.), and3. Names & phone # for: applicant, family, disinterested witnesses.

❧ Review Documents:❧ Plain Jane v. Ancestry.com

❧ Interview (at the very least):1. Applicant2. 2 disinterested witnesses

Investigation/Due Diligence

❧❧ Verify facts in application, but especially

1. Heirs,2. No Will

❧ Gather names of knowledgeable persons❧ Ask tough questions:

1. Prior marriages,2. Children out of wedlock, and3. Common law marriage.

The Interviews

❧❧ Options:

❧ Westlaw❧ Accurint❧ Public Data❧ Google

❧ Look for clues to unknown heirs

Public Data Search

❧Prior to the Hearing

❧❧ Bug applicant’s attorney❧ Heirs’ names/locations ❧ Correct distributive shares

1. Community property and2. Separate property (even if you think there is none).

❧ Use Judge Guy Herman’s Chart at https://www.traviscountytx.gov/images/probate/Docs/DnD_diagrams.pdf

Review Proposed Judgment

https://www.traviscountytx.gov/images/probate/Docs/DnD_diagrams.pdf

https://www.traviscountytx.gov/images/probate/Docs/DnD_diagrams.pdf

❧❧ Agree or disagree with application❧ Skeletal recitation of documents reviewed and persons

consulted❧ Distribution chart❧ Contact information for previously unknown heirs❧ Serve report

AAL Report

❧❧ Applicant script, but more.❧ Checklist for hearing.❧ Ensure applicant presents necessary proof.❧ Demonstrate your due diligence.

Script

❧❧ Compensation (53.104(b)): Reasonable compensation; set by

court.❧ Submit to opposing counsel ❧ Get agreement❧ File application and order for fees❧ Tips:

1. Keep time diligently;2. Show write-offs (be prepared to write-off); and3. Don’t fill in amount on the order.

Invoice

❧❧ Ensure applicant’s attorney has filed it.

Affidavit of Service of Citation (202.057)

❧❧ Ensure proper notice has been issued.

Notice

❧The Hearing

What to do?

❧❧ 30 minutes early❧ Introduce self to witnesses and opposing counsel❧ Confirm answers to key questions

Pre-hearing

❧❧ Administration/Heirship together❧ Heirship typically first❧ Applicant’s attorney leads (usually, but be prepared)❧ Use script as a checklist❧ Ask missed questions❧ Questions to show due diligence❧ DON’T SAY, “No questions”❧ “If I asked you the same questions…” (show due diligence)

The Hearing

❧Get Paid

❧Special Circumstances

❧❧ Get direction from court – time and expense of investigation

Step 1

❧❧ Look for “affidavits of single-hood” to obtain or retain

1. Public assistance2. Health insurance3. Life insurance4. Military benefits5. Social security

❧ Individual v. joint tax returns

Potential Common-law Marriage

❧❧ Magnum PI

❧ Ancestry.com❧ Professional forensic genealogist❧ Genetic testing

❧ AAL Report, include:❧ Family tree with references to evidence❧ New heirs’ contact information

❧ Notice to now known heirs prior to hearing (get waivers if possible)

Unknown Heirs

❧Tips, Pointers & Resources

❧❧ Understand the intestacy chart❧ Make the applicant’s attorney do the work❧ If you suspect fraud, don’t go along to get along❧ Don’t be afraid to ask the tough/sensitive questions

Key Pointers

❧❧ The Ad Litem Bible❧ Our website: www.romanosumner.com

Resources

http://www.romanosumner.com/

❧❧ Learn a lot❧ Gets you into court❧ Facetime with the judges

Why do it?

❧Questions?

Determination of Heirship: The Role of the Attorney ad Litem

Law

Transcript of Determination of Heirship: The Role of the Attorney ad Litem