As part of the Proceeding to Determine Heirship, the courts will invariably appoint an Attorney Ad Litem to represent any heirs that the applicant may have either forgetten, defrauded, or perhaps simply doesn’t know about. The Ad Litem’s fees are usually between $400 and $1500, but vary greatly depending on the attorney appointed, and the amount of work which the attorney is required to perform. Many people who are forced to do a proceeding to determine heirship feel the appointment of the Ad Litem simply makes the proceeding take more time and money.
The feeling a widow might express is: “I’ve told the Court who my husband’s heirs are. No one is left out, so exactly for what am I paying this extra lawyer?” This sentiment is undertandable. If you have a single, long-standing marriage, with no extra-marital children, then the family situation is should be straightforward. A competent Ad Litem will usually review pleadings, speak with family members, and the individuals who may be used as witnesses, and verify that the witnesses knew the decedent well, and he never had any children other than those listed in the application. The Ad Litem may also verify that no one ever heard the decedent mention having a will made, and that he never took any other children into the home and treated them as his own. Some Ad Litems have asked my clients to provide death and birth and marriage certificates as well. The Ad Litem files an answer and a request for fees, and attends the hearing, usually asking the witnesses most of the same questions I have just asked them.
So if an Ad Litem is bringing out essentially the same information that the applicant has already provided, why do we need him? Because applicants may have an incentive to lie. Or, at least, an incentive not to be too curious. Let’s say that a deceased husband had been married before, but never really talked about it. Now he has died without a will. The widow gets her two witnesses and files her application for administration. However, when the Ad Litem is appointed, the Ad Litem realizes that neither of the witnesses knew the husband during his first marriage. So the Ad Litem contacts the ex-wife. It turns out there was a child born during the marriage. Suddenly there is another heir. Unfortunately, many situations can become far more comlicated. Not only is divorce becoming quite common, but so has the number of children born outside of wedlock. Somethimes the Ad Litem has a real job to do.