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.

When someone has a child after writing a will, such child is known as a “pretermitted child.” Texas has complicated provisions for what a pretermitted child inherits where there is no provision made for them in the will. Sometimes these provisions act in a manner that may seem unlike what many testators would have actually wanted. Moreover, if the probate estate is taxable, then the statute will almost always change the estate plan in a manner to make it less effective. For these reasons, attorneys are taught to contemplate what should happen to a pretermitted child. Often, the best way to do this is so obvious, there is no need to really discuss it with the client. For instance, if a couple have three children, they want all their property to go to each other when the first spouse dies, and then to be split among their children. Among the “boilerplate” language that most people skim through, there will be a provision inserted by the attorney that states that “my children”, shall include all children born to or adopted by the testator. However, where my client is splitting his property among groups of people, such as between his children and his wife, or between the children of two marriages, or between children and other family members, I always ask them how they would want to treat a child born after the will is written. Some clients simply answer the question, some laugh, as they consider themselves too old to have children, but are willing to concede adoption may be a possibility, however remote. However, I have had some people, able to have children, who are adamant that, as no additional children are planned, no mention of additional children should be put in the will. I have had this opinion stated so forcefully that the client was unwilling to listen to my explanation of why the issue should be addressed. In that case, of course, I do what my client wants. However, here are a few possible examples of what can happen when the will makes no provision for a pretermitted child.

Claude has a disabled brother for whom he is a caregiver. When he writes his last will and testament, he gives his brother a home, and a generous trust to take care of him during his lifetime. He gives everything else to his wife. Claude is 65, and laughs at the idea of having children. His 45 year old wife becomes pregnant, and before Claude gets around to asking his lawyer how this will affect his estate plan, he dies. The child now inherits everything Claude intended to give his brother. The gift to the wife is unchanged. Seemsly unlikely, right? But this scenario has already happened.

Cynthia is not on good terms with her three children. She leaves them a $10,000 CD to be divided among them, and the rest of the property goes to her sister. However, she then adopts her abandoned grandchild, but neglects to rewrite her will. In this very common scenario when she dies, the adopted child receives 1/4 of the $10,000 CD, or $2,500. The sister gets everything else.

Roberto has one child from a previous marriage, and wants his will to divide his property equally between his child and his wife. He realizes that he and his wife could also have children, but he is adamant that they will not. He has already raised his family. His wife is strangely silent during the interview. When Roberto dies, his wife is pregnant with twins. The half of the property Roberto intended for his child from his first marrigage is divided into thirds. The first child now gets 1/6 of his property, the twins each also get 1/6, and Roberto’s wife’s one half goes to her unchanged.

As you can see, a great deal of harm can come from not addressing the possibility of a child born or adopted after the will is written, and there is no possible harm from addressing what should be inherited by such a child, even if the client is right, and there are no children born or adopted after the will is written. I have never heard of a lawyer who charged extra for putting in a pretermitted child clause, and even the most suspicous people will usually admit that addressing the possiblity of a future child does not make the future child more likely to appear.

If you would like to review your will to determine if it needs to be updated with a pretermitted child clause, please contact my office at 936-435-1908 or 281-723-2791 to schedule an appointment.