Changes Affecting Ad Litems in Decedents’ Estates and Guardianships

Various amendments clarify when an attorney ad litem or guardian ad litem may be appointed, whom the ad litem may represent and how the ad litem is compensated.

1. An attorney ad litem in a decedent’s estate case now may be appointed to represent the interest of “any person,” including a person with a disability under state or federal law, a nonresident, an unborn or unascertained person, an unknown heir, a missing heir, or an unknown or missing person for whom cash is deposited into the court’s registry.  The court is required to tax the ad litem’s compensation as costs in the probate proceeding and order the compensation to be paid out of the estate or by any party at any time during the proceeding.”  If the ad litem is appointed for an unknown or missing person for whom cash is deposited in the court’s registry, the court may order that the compensation be paid from the cash on deposit.  Tex. Est. Code Sec. 53.104.  Prior to this change, some courts had taken the position that the attorney ad litem could not be paid until the conclusion of the case, when the expenses could be taxed as costs.  This change also clarifies that the estate or any party may be tagged with paying the ad litem’s compensation, permitting the court to assess those costs disproportionately against a deleterious party.
2. In contrast, in a guardianship case, the court is required to appoint an attorney ad litem to represent a proposed ward’s interests in a proceeding for the appointment of a guardian, Tex. Est. Code Sec. 1054.001, while the court may appoint an attorney ad litem in any guardianship proceeding to represent the interests of an incapacitated person or another person who has a legal disability, a proposed ward, a nonresident, an unborn or unascertained person or an unknown or missing potential heir.  Tex. Est. Code Sec. 1054.007(a).  An attorney ad litem appointed under Section 1054.007 (the discretionary appointment section) is entitled to reasonable compensation for services provided in the amount set by the court, “to be taxed as costs in the proceeding.” Section 1054.007(b).   Tex. Est. Code Sec. 1155.054 and 1155.151 were amended to permit the court to order any party to pay the applicant’s fees and the compensation of all court-appointed personnel (including ad litems) upon a finding that the party acted in bad faith or without just cause in prosecuting or objecting to an application in the proceeding.  Section 1155.151(a) permits the court to set the cost of court-appointed personnel (including ad litems) in an amount the court considers equitable and just, to be paid from the guardianship estate or by the county if the estate is insufficient (unless the court makes the bad faith/without just cause finding and assesses costs against a party).
3. In heirship proceedings, the statute now clearly states that the court must appoint an attorney ad litem to represent the interests of heirs whose names or locations are unknown.  Tex. Est. Code Sec. 202.009(a).  The court is permitted but not required to expand the attorney ad litem’s appointment to include representation of an incapacitated heir on a finding that the appointment is necessary to protect the interests of the heir. Sec. 202.009(b).