In re Estate of Stanton, 202 S.W.3d 205 (Tex. App.—Tyler 2005, pet. denied).
After Temporary Administrator’s appointment expired under Probate Code § 131A, he filed a request for payment of legal services he performed while serving as the temporary administrator. He also served as the attorney for several parties asking for appointment as the permanent administrator and sought to have himself reappointed as the temporary administrator. The duly appointed Attorney Ad Litem for the decedent’s unknown heirs under Probate Court § 34A opposed these applications and asked the court to appoint an independent party as the administrator. The probate court agreed, appointed a third-party as the administrator, and denied Temporary Administrator’s request for attorney’s fees. Temporary Administrator appealed.
The court explained the Attorney Ad Litem had standing to oppose the
applications and request the appointment of an independent third-party
administrator. The Attorney Ad Litem owes the same duty to the unknown
heirs as he would owe to clients who expressly employ him. If the
unknown heirs had been present, they could have opposed the applications
and requested the appointment of an independent third-party
administrator and thus Attorney Ad Litem had both the standing and the
authority to do so as well.
Moral: The attorney ad litem for unknown heirs may take all actions for
the unknown clients as the attorney ad litem could take for actual known
clients.
The court rejected Temporary Administrator’s argument that the
probate court abused its discretion in appointing a third party as the
administrator because the applicants had higher priority under Probate
Code § 77. The court explained that all of the other applicants had a
demonstrated history of exceeding their authority in this case and thus
the probate court could reasonably conclude that they were unsuitable to
serve. For example, Temporary Administrator filed an application to
determine heirship without obtaining court permission and the other
applicants continued to manage estate property without court
authorization even after the temporary administration had ended.
Moral: Taking actions that require court authorization without obtaining
that authorization is sufficient grounds for a court to determine that
the person is unsuitable to serve as a personal representative.
The probate court denied Temporary Administrator’s request for
attorney’s fees because it could not distinguish the fees for work he
performed as a temporary administrator from the legal fees for his
services, some of which were for services not authorized by the probate
court. However, the probate court indicated that he could refile his
application. The appellate court determined that the refusal was
justified and that Temporary Administrator still had the possibility of
recovering a portion of the requested fees upon making an appropriate
application.
Moral: A temporary administrator should perform only those actions
authorized by the court. A temporary administrator who is also an
attorney should separately identify the services performed in each
capacity.
The appellate court agreed that the probate court had the power to
order a deposit from estate funds to be paid to the attorney ad litem
for expenses which would be incurred in investigating the large number
of potential heirs. Probate Code § 12(a). The court also stated that the
attorney ad litem is entitled to reasonable attorney’s fees and expenses
on appeal.
Moral: A personal representative needs to be prepared to make a deposit
for the expenses of the attorney ad litem.
The appellate court determined that the amount of bond set for the
administrator was proper because it exceeded the value of the property
except for the property that had already been placed in safekeeping.
Probate Code § 194(6).
Moral: Bond may be reduced by the amount of estate property placed in
safekeeping.