Probate Involving a Minor or Incapacitated Adult

Minor Child or Incompetent Adults

Another relatively common situation is a probate involving a minor child or a mentally incompetent adult involved in the probate.  Minors include those under the age of 18. Mentally incompetent adults include those who are not able to manage their affairs due to disabilities, traumatic events, or age-related limitations.  Minor children and mentally incompetent adults can make the probate process much more difficult.

Guardian Ad Litem or Attorney Ad Litem

The probate court may appoint a guardian or attorney ad litem to represent a minor or mentally incompetent adult.

The probate courts frequently appoint ad litems when there is a minor heir.

For mentally incompetent adults, the probate court is likely to appoint an ad litem if it appears that the appointment is needed to protect the incapacitated persons interests.

The probate courts also appoint an ad litem if one is needed to receive government funds.

The costs for the ad litem is generally charged to the probate estate.  Texas law provides a number of rules that specify what assets are to be used first to pay for the ad litem costs.  These costs can be significant.

Service of Citation Minors

As explained previously, when there is no will, an applicant who wants to serve as the personal representative has to have a heirship proceeding.  The heirship proceeding has to be served on the heirs or the heirs have to waive service of citation.

Similarly, the applicant has to get the consent of all of the heirs if they want an independent administration.

The problem with minors, specifically minors under 12 years old, is that they cannot be served or waive service and cannot consent to independent administration.  The applicant has to serve the child’s parent or guardian or guardian ad litem or obtain their consent to waiver of service and consent to independent administration.

It should be noted that some probate courts will not grant independent administration when there are minor heirs.  The applicant should check with the probate court in advance to determine whether the court is likely to deny a request for independent administration when there is a minor heir.

Making Distributions to Minors

While a minor generally can hold property in their own name, many financial institutions will not transact business with minors.  And distributions to minors present difficult questions about liability for distributing assets to minors or mentally incapacitated adults who cannot manage the assets appropriately.

This can make it difficult to make distributions to the minor.  It may be necessary to transfer property to a Uniform Transfer to Minor Act (“UTMA”) account, form a management trust to hold property, pay the funds to the court registry, or wait until the child reaches the age of majority or the cause of the adult’s mental incapacity ends before making final distributions.

Now that the personal representative is appointed and the initial court process is closed, the personal representative has to attend to the decedent’s property.  Let’s consider that topic next.  Click here to continue reading.  >>>>

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