Probate Law Blog
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Texas Probate Attorney Ad Litem Fee is Not Negotiable
Probate courts in Texas appoint attorneys to represent the unknown heirs. The attorneys fee is paid out of the probate assets. In Estate of Erwin, No. 07-16-00130-CV (Tex. App.–Amarillo 2018), the court addressed whether the beneficiaries and the attorney ad litem can negotiate or agree on the amount of the attorneys fee.
Facts and Procedural History
In Erwin, the court appointed attorney submitted an application for $1,399.12 in attorneys fees. The court awarded $850.00 in attorneys fees. The court appointed attorney appealed the award and ended up appealing the probate courts denial.
Court Appointed Attorneys in Texas Probate Cases
Texas probate law determines how a person’s property and debts are disposed of when the person dies. To accomplish this, Texas law provides a process for identifying all know and unknown heirs. This is referred to as a heirship proceeding.
Texas law requires the probate court to appoint an attorney ad litem in every heirship proceeding. The attorney ad litem is a licensed attorney whose task is to represent the interests of heirs whose names or locations are not known.
Attorneys Fees Have to be Reasonable
Texas law provides that the probate court is authorized to sets the attorney ad litem’s fee based on a reasonableness standard. This standard considers the following factors:
- the time and labor involved;
- the nature and complexities of the case;
- the amount of money or the value of the property or interest involved;
- the extent of the responsibilities assumed by the attorney;
- whether other employment is lost by the attorney because of the undertaking;
- the benefits resulting to the client from the services;
- the contingency or certainty of compensation; and
- whether the employment is casual or for an established or constant client.
Here, the probate court concluded that $850.00 was a reasonable fee. The appeals court had no evidence suggesting that the $850.00 fee was not unreasonable.
It should be noted that the $850.00 fee is higher than the standard attorney ad litem fee that is typically awarded by the probate courts in Houston.
The Probate Court Sets the Amount of the Fee
While the attorney ad litem and heirs may negotiate or agree on a rate, the appeals court concluded that the negotiated or agreed amount is not binding on the probate court. The authority for this is found in Texas law.
Texas law says that the attorney ad litem fee is to be paid by the estate, but that the decision as to the amount of the fee is to be determined by the probate court.
Accordingly, the appeals court affirmed the probate court’s attorney fee award.
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