In re Estate of Frederick, 311 S.W.3d 127 (Tex. App.—Fort Worth 2010, no pet.).

Estate Administration

Attorney ad Litem Costs

 

After Son died and Wife attempted to probate intestate Son’s estate, Mother contested Wife’s application. The court appointed an attorney ad litem for the unknown, unascertained, etc. heirs. After litigation successfully showed that Wife was actually Son’s wife, the court assessed the costs of the ad litem against Mother. Mother appealed.

The appellate court affirmed. The court began its analysis by examining Probate Code § 34A which authorizes the court to appoint an attorney ad litem and noted that the statute does not specify against whom these costs should be assessed. Thus, the assessment is within the court’s discretion. Although an earlier case [Ajudani v. Walker, 232 S.W.3d 219, 224 (Tex. App.—Houston [1st Dist.] 2007, no pet.)] and legislative history suggest that the estate should be responsible for these costs, the court noted that § 34A is clear and thus the text of the section is determinative. Because the section is silent, Prob. Code § 12(a) provides that the general rules of civil procedure apply which state that costs are generally assessed against the non-prevailing party unless the court for good cause decides to assess them differently. Tex. Rul. Civ. P. 131, 141. The court then held that the trial court did not abuse its discretion by assessing costs against Mother.

Moral: In estate cases, the court may assess ad litem costs as it determines. Note, however, that in guardianship cases, Probate Code § 669 provides that the guardianship estate is responsible for the costs of a guardian ad litem.



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