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Texas Probate Attorney Ad Litem Fee is Not Negotiable

When someone dies without a will, the probate courts in Texas are required to appoint attorneys to represent the unknown heirs.  This attorney is referred to as an “attorney ad litem.”

The attorney ad litem fee is paid out of the probate assets of the estate.  The amount of the fee can vary widely based on the amount of work required.

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 attorney’s fee.

Facts and Procedural History

This was an uncontested probate case from Randall County. The estate consisted of approximately $30,000 of assets.

The attorney ad litem filed a report in the case indicating that the decedent had two adult children by marriage who survived him. The report also indicated that he had contacted two independent witnesses who confirmed the facts of the heirship.

The attorney ad litem worked out a Rule 11 agreement with the beneficiaries that he would be paid $1,399.12 in attorneys fees. The attorney ad litem then submitted an application for $1,399.12 in attorney’s fees. 

The fee was based on 6.2 hours at $225 per hour and $4.12 for expenses/reimbursements.

The court awarded $850.00 in attorney’s fees.  The attorney ad litem then appealed the award to the probate court, and ended up appealing the probate court’s denial.

Court Appointed Attorneys in Texas Probate Cases

Section 53.104 of the Texas Estates Code outlines the appointment of attorneys ad litem in probate proceedings. An attorney ad litem is a lawyer appointed by the judge to represent the interests of a person who cannot represent themselves in a legal matter.

Subsection (a) of Section 53.104 provides that the judge of a probate court may appoint an attorney ad litem to represent the interests of any person, including those who have a legal disability under state or federal law, nonresidents, unborn or unascertained persons, unknown heirs, missing heirs, or unknown or missing persons for whom cash is deposited into the court’s registry under Section 362.011.

Subsection (b) specifies that an attorney ad litem appointed under this section is entitled to reasonable compensation for the services provided. The amount of compensation is set by the court. The court may order that the compensation be paid out of the estate or by any party at any time during the proceeding. For an attorney ad litem appointed under Subsection (a)(6), the court may order that the compensation be paid from the cash on deposit in the court’s registry as provided by Section 362.011.

What Does the Attorney Ad Litem Do?

The attorney ad litem will typically investigate the case, gather evidence, and analyze legal issues related to the interests of their client. They will then provide their findings and recommendations to the court to help the judge make a decision that is in the best interests of their client.

For example, if an attorney ad litem is appointed to represent the interests of an unborn child who is a potential heir to an estate, the attorney may investigate the estate to determine the extent of the assets and liabilities, and advocate for the unborn child’s interest in the distribution of the estate.

What does this work entail? Typically it involves contacting disinterested witnesses and interviewing them and running public searches to see if the family relationships are as stated in the heirship application. Most attorneys do not do a thorough investigation.

Ad Litem Fees Have to be Reasonable

Texas law provides that the probate court is authorized to set 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 standard fees in Houston are $600, plus or minus.

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.

If you are facing probate issues in Texas, Kreig LLC offers a FREE attorney consultation by calling (281) 219-9090. Our experienced probate attorneys will work with you to provide the guidance and support you need during this difficult time.

Our Houston Probate Attorneys provide a full range of probate services to our clients, including helping with ad litem disputes. Affordable rates, fixed fees, and payment plans are available. We provide step-by-step instructions, guidance, checklists, and more for completing the probate process. We have years of combined experience we can use to support and guide you with probate and estate matters. Call us today for a FREE attorney consultation.


The content of this website is for informational purposes only and should not be construed as legal advice. The information presented may not apply to your situation and should not be acted upon without consulting a qualified probate attorney. We encourage you to seek the advice of a competent attorney with any legal questions you may have.

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