Previously we covered what taxpayers should plan for in light of the recent United States presidential election and its results. Of course, there’s much more to consider than just taxes, so this week we are considering the legal landscape in 2025 and what various business owners should expect going into the new year.


The Biggest Takeaway is That the Regulatory Environment is Going to Ease in Most Areas
One of the Trump campaign’s overarching themes was reducing the regulatory reach of the federal government. So far, comments from the incoming Trump administration suggest that it will follow through with slashing federal regulations.

Some industries and segments of the economy will feel this impact more than others. In particular, the energy and consumer finance industries will be on the front of this regulatory pullback.

The Biden administration’s relationship with oil and gas companies (federal land leasing for oil drilling, in particular) was a subject of discussion the previous four years. The Trump administration will likely roll back some of the regulations concerning federal land leasing requirements, making it easier for these companies to expand their oil and gas drilling and extraction operations.

Consumer finance is another industry that will probably see some regulatory easing with the new president. The Consumer Financial Protection Bureau (CFPB) has recently developed and put in place various regulations aimed at banks and lending institutions. These regulations limit certain fees that banks can charge their customers. The CFPB has also created similar fee-limiting regulations at airlines, capping what airlines can charge for certain services. While it isn’t clear what will happen to the regulations already on the books, it is probable that the CFPB will have less influence in regulating industries.
Overturning the Chevron Doctrine Will Also Have Regulatory Impacts
In fact, a notable Supreme Court decision came down earlier in 2024 that will steer the regulatory direction further.

The Chevron Doctrine, in place for more than 40 years, was overturned in June. This legal concept required courts to accept a federal regulatory body’s “reasonable interpretation” of the regulations they pass. In other words, the Chevron Doctrine required courts to give preference to the federal regulator’s perspective when making legal judgements.

Now that the Chevron Doctrine has been overturned, courts now have the latitude to interpret regulatory language as it sees fit, which may be in contradiction to what federal regulators intended. In effect, federal regulators will have less power to enforce their actions through the courts.
One Example of Regulatory Changes is with Nondisclosure Agreements and Covenants
It’s still too early to make firm predictions on what the legal landscape will look like in 2025 and what regulatory bodies will be targeted by the Trump administration. However, there is one example of what these changes might look like for business owners - nondisclosure agreements and covenants.

Non-disclosure agreements are made between employers and employees - typically new hires. They restrict what the employee may do with the inside knowledge they gain by working with the business. This includes trade knowledge, customer lists and other important company assets.

Non-disclosure agreements and covenants are a matter of debate because they can either be too restrictive (which makes it difficult for employees to work in the same industry if they leave the business) or too lax (which exposes the employer to significant risk). While campaigning, the Biden administration stated that it would make employer-employee non-disclosure agreements difficult to enforce - coming down on the employee’s side in this regard.

Election season is behind us. The U.S. has a new incoming president and likely a new tax philosophy for the country. That means it’s time for taxpayers to review their tax planning strategies and position themselves for potential changes to the tax code.

Starting in 2025, the Republicans will control the executive branch, along with both parts of Congress, albeit with a tight margin in the House that may be an obstacle to major tax-related changes. Regardless, there are certain policies that tax experts are preparing for, including the Hap May legal team.


The Tax Cuts and Jobs Act - What to Expect
During President Donald Trump’s first term in office, his signature tax-related piece of legislation was the 2017 Tax Cuts and Jobs Act (TCJA). The TCJA made many major changes to the tax code that are still in effect today, as most of the relevant provisions are set to sunset (expire) at the end of 2025. One provision that will remain is the corporate tax rate, which was permanently set to 21 percent following the TCJA’s passage.

However, if another tax bill isn’t passed prior to 2026, the following tax provisions are set to revert back to their 2017 standards:

* Estate taxes - The TCJA doubled the estate tax exemption from around $6-7 million to about $14.3 million. In other words, an estate owner can currently leave $14.3 million in assets from their estate to their heirs before estate taxes are assessed. If the TCJA provisions expire without a replacement, the estate tax threshold will return to its $6-7 million mark.
* State and local tax deduction (SALT) - The SALT deduction allows taxpayers to deduct a portion of their state and local taxes (such as property and sales taxes) from their federal income tax return.The TCJA imposed a $10,000 cap on the SALT deduction, lowering the amount that (typically wealthy) taxpayers could deduct from their federal income taxes. If the TCJA expires, this cap will be lifted.
* Marginal income tax rates - The TCJA made some slight but significant adjustments to marginal tax rate brackets. The top marginal tax rate in 2017, for example, was 39.6 percent, which the TCJA lowered to 37 percent. If the TCJA expires, tax rates will revert to the 2017 levels.
* Small business income deduction - The TCJA implemented a 20 percent tax deduction for qualified pass-through income. S-corporations, partnerships and sole proprietorships were the beneficiaries of this deduction, which will be eliminated with the 2025 TCJA sunset.
* Standard deduction - The standard deduction is the simplified flat deduction that most taxpayers take when filing taxes. The TCJA increased the standard deduction from $6,500 to $12,000 for individuals, and from $13,000 to $24,000 for those that are married and filing jointly. The TCJA also eliminated personal exemptions. If the TCJA expires, the deduction and personal exemption amounts would revert back.
* The Child Tax Credit - The Child Tax Credit was increased from $1,000 to $2,000 for each child under 17 in the household under the TCJA. The maximum refundable portion of the credit was increased from $1,000 to $1,400 per child and was indexed to inflation. Further, the TCJA increased the income limits before phasing out the Child Tax Credit. These are set to revert back to the 2017 standard once the TCJA sunsets.

It’s likely that with President Trump’s re-election the above provisions will be extended with the passage of a TCJA “part two” piece of legislation.
What Might Interfere with the Republican’s Post-Election Tax Approach?
There are reasons to believe that both parties would want to avoid a TCJA sunset. The provisions contained in the act benefits a number of constituencies, and allowing the TCJA to expire without an alternative would have potentially serious political blowback for Republicans and Democra...

The Corporate Transparency Act (CTA) is a federal anti-corruption and anti-money laundering law that came into effect on January 1, 2024. Among its provisions is the beneficial owner information report (BOIR), which many business entities are required to file, or they may face significant penalties that can increase quickly.

BOIRs are filed with the Financial Crimes Enforcement Network (FinCEN) and are used to identify the entity’s beneficial owners. This is meant to assist FinCEN with identifying bad actors hiding behind business entities to engage in criminal activity. If your organization is engaged in legitimate business, there’s no reason not to comply with the CTA.


Who is a Beneficial Owner?
Beneficial owners must be identified on a BOIR. To be considered a beneficial owner, either of the following must be true about an individual:

* They own at least 25 percent of a reporting company.
* They maintain “substantial control” over a reporting company.

The CTA’s definition of “substantial control” is somewhat open-ended, but in general, if any of these are the case for an individual, they likely need to be identified on a BOIR:

* The individual is a senior officer (a president or chief officer) or general counsel
* The individual is a general partner of a limited partnership
* The individual has the authority to remove other officers
* The individual has control over intermediary entities that possess substantial control over the reporting entity

Who Must File a Beneficial Owner Information Report, and What Entities are Exempt?
Entities that must file a BOIR include limited liability corporations (LLCs), non-publicly traded corporations, and limited partnerships (including limited liability partnerships and family limited partnerships).

Exempt entities include publicly traded corporations, sole proprietorships, non-profit corporations, most trusts, and inactive entities. These entities are not required to file a BOIR with FinCEN. Further, some beneficial owners do not need to be included on a BOIR, including minor children, individuals whose only interest in the reporting company are through a future inheritance, certain creditors, and employees who are not senior officers and whose economic or control benefits are based on their employment status within the company.
What if a Beneficial Owner is Another Entity or a Trust?
If you’ve previously filed a BOIR for a reporting entity and that entity is the beneficial owner of another reporting entity - LLC 1 owns LLC 2, for example, and both need to file a BOIR - you should be able to use a FinCEN number that the reporting system generates upon reporting, and then you can use the FinCEN number to report the beneficial owner information for LLC 2.

However, some have encountered issues with FinCEN’s online filing system that occasionally makes this shortcut entry of a FinCEN impossible without re-entering all of the “end-of-the-line” beneficial owner information for the second entity. This shouldn’t be a problem, as long as you know who the beneficial owners are for the second entity, you can just enter their information to complete the process.

If the entity’s beneficial owner is a trust, check the box that says, “beneficial owner is an exempt entity” and enter the name of the trust in the box.
How is a Beneficial Owner Information Report Filed with FinCEN?
Anyone who is authorized by the reporting entity to file a BOIR may do so. This individual must also provide their personal information (or create their own FinCEN number and provide it) on the BOIR for compliance purposes.

To file a BOIR with FinCEN, go to the agency’s website. Once there, click on “File BOIR” and click on the Web option to File Online.

The 2024 elections have driven intense conversation on a number of issues. Among them are taxes, as both political parties have good reason to pass a new set of tax laws in the near future. Enacted in 2017, many current tax provisions are set to expire a little more than 12 months from now, so the next administration will have to make tax law a focus soon after they settle into the Oval Office.

Let’s review how the 2024 elections may affect taxes, depending on who is in control of the legislative and executive branches.


What Happens if There is No New Tax Bill?
The last major tax bill was passed in 2017, known as the Tax Cuts and Jobs Act. In most instances, it is still the primary tax document governing individual and business tax provisions. And many - but not all - of those provisions are scheduled to sunset at the end of 2025.

That means, theoretically, if no new tax bill is passed by the legislature and signed into law by the President, any provisions that are scheduled to sunset would revert back to what was on the books before the TCJA - effectively back to 2016-era tax provisions.

Thankfully that won’t affect some of the most impactful provisions - corporate tax rates will remain at a flat 21 percent even if the act expires. There are, however, numerous important provisions that would be affected by a pre-2017 rollback, including the child tax credit, the standard deduction, and state and local tax (SALT) deductions.

As both political parties have their own tax agendas to pursue (and constituents to please), it’s highly likely that a new tax bill will be passed before the TCJA expires. As for what a new set of tax laws would include, that would depend on which party has greater control over the legislative process.
What May Happen if the Republicans Largely Influence the Legislative Process During a Tax Bill?
There is a chance that the Republicans will control both the House and Senate following the 2024 elections, which would give them serious negotiation power should a new tax bill come to the floor.

In this theoretical outcome, it’s likely that most of the TCJA provisions set to expire would be extended. That would be the starting point, at least, but it’s likely that certain things like the amount of the standard deduction would be recalibrated to match today’s economic realities. Further, both parties have indicated a willingness to raise the child tax credit in a new tax bill beyond what the TCJA provides for 2025 ($1,700 refundable portion).

In a Republican-majority scenario, the following provisions would probably be preserved along with the tax concepts underpinning the TCJA:

* A larger standard deduction and no personal exemptions
* Lower marginal income tax rates at most income levels
* A larger child tax credit and refundable portion
* A larger estate tax exemption (the TCJA doubled the pre-2017 exemption)
* Additional deductions for small businesses (the TCJA allowed sole proprietorships, partnerships and certain corporations to deduct up to 20 percent of pass-through income)

In addition to the above tax-related provisions, there are many questions surrounding tariffs under a potential Trump administration. Putting aside the economic impacts of tariffs, as there are many and they are difficult for any one person to explain, much of the discussion related to tariffs is centered around whether they can be used to fund government programs - perhaps as a way to offset the cost of continuing tax cuts.
What May Happen if the Democrats Largely Influence the Legislative Process During a Tax Bill?
The Democrats may also have the upper hand in tax law negotiations, depending on how the presidential and Senate/House election...

Under Section 363 of the Bankruptcy Code, interested parties are authorized to buy assets in bankruptcy. By doing so, the purchaser is able to acquire the asset “free and clear,” which means any liens or judgements against the asset are not transferred to the asset (and the party purchasing the asset).

This gives would-be buyers opportunities to acquire valuable assets at a steep discount, but there is a process that must be followed to ensure the transaction is completed in accordance with Section 363.


What Assets Can be Purchased in Bankruptcy?
Few assets are off the table if you’re purchasing them during bankruptcy. What is on sale is a matter of discussion between the debtor company (or individual), the court-appointed bankruptcy trustee and the interested third-party buyer. In general, though, all of the following can be sold or purchased free and clear through bankruptcy:

* Real property (land, buildings)
* Equipment
* Vehicles
* Inventory
* Intellectual property, including trademarks and copyrights
* Client lists
* Trade secrets and processes
* Mortgages and lease agreements

In some cases, buyers can even purchase judgements levied against the debtor company, gaining legal grounds to seek repayment from the debtor company.
What is the Process for Buying Assets in Bankruptcy?
Typically, it’s difficult (or outright impossible) to buy assets in bankruptcy due to the presence of liens or judgements against the assets. Tax liens, first liens, second liens and so on determine the priority in which creditors are paid back, should the asset be liquidated. This means if the asset is sold, the liens would then become the responsibility of the new owner, entangling them with creditors they would otherwise rather not deal with.

Instead, third party buyers typically seek a free and clear transaction by leveraging Section 363 of the Bankruptcy Code. Here’s how such a sale under Section 363 would typically proceed:

* Before bankruptcy is filed - Before the debtor files for bankruptcy, they may start marketing the assets in the pursuit of a “stalking horse.” A stalking horse is the initial bidder willing to enter into a purchase agreement, and like a stalking horse sets the pace for other racehorses, a stalking horse bid sets the terms and structure for subsequent bids on the assets. It also sets the floor for the bid amount, so it gives the debtor a degree of certainty before other potential buyers get involved.

In addition to seeking a stalking horse, the debtor may also start the selling process before filing bankruptcy to ensure the 363-process can be completed quickly.


* Once bankruptcy is filed - As soon as bankruptcy is filed, a bankruptcy court and trustee will be involved in the process. To carry out the 363-sale, the debtor will first need to obtain approval from the court to move forward with the bidding process.

To do so, the debtor and their trustee will file a motion with the bankruptcy court. This motion will seek approval for the bidding process, along with the deadlines for the auction and following sale. If no stalking horse bidder is present at this time, one may be selected to start the process.


* Approving the bidding process and sale - Once the bankruptcy court receives the motion for a 363-asset sale, it will schedule a hearing, usually a few weeks from the date of the motion. At this hearing, the debtor must provide evidence that the proposed bidding procedures and structure will optimize the sold asset’s value.

Another hearing will be scheduled once a buyer is identified for the final transaction. At this hearing,

It is important for taxpayers to understand how partition agreements and an IRS tax filing status are linked. The connection between the two can impact how a married couple files their tax returns and how it could potentially affect the non-debtor spouse.



In the case of married couples, partition agreements are legal documents that define the terms and conditions of the division of property between the two of them. Property can include real estate, bank accounts, and other valuable goods. Examples of partition agreements are prenuptial and postnuptial agreements. Partition agreements are essentially an agreement between the spouses on how to divide ownership and rights to their property. In Texas, any property that is earned or received, with some exceptions like inheritance, is considered community property, meaning both spouses have ownership rights over the whole. A partition agreement is typically used as a way for the spouses to state that they do not want Texas law to dictate ownership of the property, and they want to decide who owns what.

Today, it is not unusual to see couples entering partition agreements after they have married. The reasoning behind this movement is that it can allow the two individuals to have a say in how their property is divided up instead of letting default Texas community property laws decide. Certain pieces of property are defined as separate. This keeps property as “yours and mine” and eliminates the default “ours” factor.
Entering into a Partition Agreement
One of the most common questions we get about partition agreements is why someone would want to enter into one. The short answer is that there are a number of valid reasons, including:

* People with a second marriage (who have children from a first marriage) may be worried about the consequences upon death (or the incapacitation) of one of the married partners, such that they want some of their money to go to their children. This may or may not occur if it is community property.


* Married partners that no longer live together but do not wish to legally divorce.


* In connection where partners are divorced and perhaps there is a reconciliation where the couple decides to reconcile but wants to have boundaries as to what each owns.


* Estate planning purposes.


* For creditor protection purposes so that the debts of a debtor-spouse do not attach to the non-debtor spouse, or the assets of a non-debtor’s spouse are not subject to claims from the creditors of a debtor-spouse. This can work fairly well when you partition them, if at the time you partition them there is no real debt problem. It works best if the spouses enter into a partition agreement prospectively so as to avoid the argument that this was done to defraud creditors.

It is worth noting that it can be hard for a creditor to set a partition aside unless the person already has a judgement against them or the partition agreement was signed well after the debt entered into collection actions.
Entering into Partition Agreement Before Marriage and Its Impact on Filing Taxes
If a partition agreement has already been signed, it is important to decide how to file your federal income taxes, especially if one spouse makes significantly more than the other.

If two spouses enter into a partition agreement that they have signed, executed and notarized, it usually does affect how we would advise them to file their tax returns. For example, if a couple has nothing but community property, community income and few debts, there is little reason not to file jointly.

Federal tax liens are a product of the Internal Revenue Service (IRS). Federal tax liens are created and filed in the property records by the IRS when a taxpayer owes the IRS money that the taxpayer hasn’t paid. If you have ever had a federal tax lien against your property, you may wonder if the IRS can foreclose on your property. By understanding how a federal tax lien works, it can equip you to avoid foreclosure or know how to handle it. However, in full disclosure, dealing with a federal tax lien can get messy quickly, which is why the majority of individuals or companies facing this situation turn to successful attorneys for guidance and representation.

Suffice it to say, you do not want a federal tax lien against you. It is the first thing that hits the public record, so creditors and credit reporting agencies will know there is a federal tax lien. A federal tax lien is filed in the county in which the debtor has property and theoretically puts a lien on all the property, real or otherwise, the debtor has in that county. For these reasons and so many more, federal tax liens should always be taken seriously.

Although federal liens are attached to everything a taxpayer owns within that county, there may be some wiggle room. A homeowner with a lien may still be able to sell furniture, such as a couch, to their neighbor without interference from the IRS. However, if a factory with a lien is selling expensive equipment worth millions of dollars, the IRS could come after that equipment and leave the buyer empty handed.


What Happens When a Federal Lien Is Issued on Property with an Existing Mortgage?
In the event that the IRS has a federal tax lien against a house with an outstanding mortgage, the question becomes which is superior? The tax lien or the mortgage? In general, most states have a first come, first serve rule which means that if the mortgage is in existence prior to filing the tax lien (i.e. the deed of trust in favor of the mortgage lender is filed in the public record before the federal tax lien), the mortgage will most likely be superior.

However, it would be a mistake to think that the IRS cannot do anything if there is a current mortgage on the house. For example, if there is a house with an existing mortgage and a federal tax lien is filed, the IRS can still foreclose. A foreclosure requires the IRS to go through some procedural hurdles first, which typically makes this process uncommon, but it can happen.
The Steps the Government Takes to Follow Through with a Foreclosure
For the government to foreclose on a property, there is a procedure they must follow which can generally look like the following:

* The government gives notice by sending intent letters to the taxpayer
* If the taxpayer does not provide a satisfactory answer or any answer at all, then the IRS will do a public notification. This is most often done with commercial property and office buildings, but it may also be done with a house.
* The IRS will prepare to sell their interest in your house, which means they will foreclose on the property if you do nothing to stop them.
* Foreclosure means the IRS will conduct the sale of the property and issue a special kind of deed.

In most cases, the IRS applies the eighty percent rule, which means they are looking to get eighty percent of the value of the house. So, if you have a $300,000 house, $240,000 mortgage and a $60,000 tax lien on it, there is not enough equity.
Right of Redemption
The taxpayer has a right of redemption which can be a specific number of months for the taxpayer to come up with the funds to pay the amount the property sold for, plus a redemption premium, which can be somewhere around twenty percent.

For instance, if a buyer at a foreclosure auction bids $100,000 for the property,

Bankruptcy is something the public hears about often. Most of the time, the news and media focus on big corporations or well-known wealthy individuals. Sometimes it may seem that certain corporations or individuals survive, and maybe even thrive after bankruptcy. It is not true that people or businesses can get richer through bankruptcy. Filing bankruptcy is, in fact, a serious issue.

Determining whether filing bankruptcy is the right move for you or your business is critical before moving forward. Bankruptcy is intended to be an option provided by the government to help people and businesses that are struggling to overcome large debt, but depending on the specific circumstances, bankruptcy is not for everyone.

From the moment you are even considering bankruptcy for yourself or your business, it is strongly suggested to make an appointment with a bankruptcy attorney for advisement of the right steps to take, when to take them, and what to expect.



Why Bankruptcy Exists

Bankruptcy is designed for people and businesses that are in debt to too many creditors and just cannot pay everybody. The underlying policy for bankruptcy is helping the debtor settle some, if not all of their debt in an organized fashion, attempting to ensure that most of the creditors with valid claims get something back.

For example, let’s say a debtor has several creditors. Some of these creditors could be suppliers or vendors, government taxing authorities, contract laborers or service individuals. It is not uncommon to have outstanding debt with multiple entities simply because cash-flow was not good enough to pay off everyone and the debtor prioritized some over others for whatever reason. Without bankruptcy, all creditors would likely be pursuing the debtor with their own resources and remedies, and the debtor would have to deal with each of them separately. This is a daunting task. And in some cases, the most aggressive creditors aren’t the ones that have superior right to be first-in-line to be repaid. Preferential treatment of one creditor over the other can have some long-lasting negative consequences. Instead, bankruptcy court offers an organized manner whereby the debtor and all the creditors must join together to figure things out.

The Potential Upside of Declaring Bankruptcy

While declaring bankruptcy for yourself or your business is not for everyone, there are some reasons why people tend to think it has an upside:

* Automatic stay. In bankruptcy there is something called an automatic stay. When a debtor files bankruptcy, the court will bar creditors from any further collection actions until the court eventually approves them doing so.
* Some people see a big financial mogul in the public eye that has filed bankruptcy and appears to still be doing really well with both money and even high public opinion. Individuals wonder why that person is still rich and having their image on the front of magazine covers. As glorified as some famous people make bankruptcy seem, the main thing to note is that bankruptcy is a cumbersome, expensive and stressful process. A lot of personal and financial information is shared with the court and the parties involved. And, ultimately, the debtor’s creditors still get paid something. So no matter how the media may spin it, no debtor in bankruptcy gets off scot-free.
* Immunity Toward Future Wages. When a person declares bankruptcy, it protects that person’s future wages. In other words, if I am quite talented and have the potential to earn a good wage, but I have current debts I can’t pay, I can file bankruptcy and use my current assets to pay creditors. Once my bankruptcy case is discharged, I can then go on to earn more money without having to promise those future wages to any of...

Making a will is one of the most important things you can do to protect your assets, but what happens if your heirs can’t find the original will? The short answer is that things could get problematic quickly. This is primarily because copies do not carry the same weight as the original in the eyes of estate law.

Before you make a will, it is vital to understand how to ensure it is legal, how to store the original, and what to do if you decide you want to revoke the will and begin anew. Without knowledge of these processes, you could risk your assets being distributed contrary to your final wishes.


What Happens When You Do Not Have the Original Will?
Probate courts need the original will because along with it comes the authenticity of the document. Without the original, there is a presumption that comes into play. It is not as simple as saying that your spouse or parent died, and you cannot find the original, but you have a copy of the will. The law will presume that without an original will, the testator, or person who made the will, destroyed it with the intent to revoke.

Some of the top reasons there is no original will to present include:

* Its location is unknown
* It is misplaced during a renovation or move
* It is destroyed in a natural disaster such as a fire or flood

That said, there are some instances in which it may be possible to overcome that presumption. For example, if the will was partially destroyed in a natural disaster, but some parts are still readable, and you have witnesses (often attorneys) who can attest that the will was only recently drawn up. Another way to overcome the presumption is if a spouse’s mirror-image copy still exists that was drawn up at the same time, and no legal heirs contest using a copy of the testator’s will in court.
Won’t My Lawyer Have Records of My Will?
Many individuals make the mistake of thinking that when an original will cannot be found, their attorney will have copies.

Years ago, lawyers often kept clients’ wills in a safety deposit box or a fireproof safe. The problem is that the lawyers then had the obligation to keep track of it for thirty to forty years or more. Consider what might occur if something happens to the lawyer during that time. Consider if the heirs would even know who the testator’s lawyer was at the time it was drawn up and if they would know how to reach them. If lawyers do have a copy, it is still just a copy. However, if an original will cannot be produced and no one is contesting it, then there may not be a reason to anticipate any problems.
Copies Require Notice
If the copy looks good, the circumstances for not having the original are not unusual and there are no obvious red flags or suspicions, everything may be fine. Yet, the caveat to this is that there must still be a notice put out to all the heirs that would potentially let them know the copy has been entered for probate and there is an application to probate using the copy. The heirs will need to be asked if they have any reason to protest. If the heirs sign waivers of notice saying they will not contest, it can be filed with the court.

Issues can occur if you cannot locate the heirs to notify them. You may have to hunt to find last known addresses, try to contact people who know where they are, and then issue a citation of personal service. If service of process fails, the person applying to probate the will may have to get a court-appointed ad litem to represent the heirs during any proceedings (see our previous blog and podcast about attorneys ad litem).
Copy of Will Scenario

Attorneys ad litem are important positions within the probate court system. An attorney ad litem can assist with representing those who cannot represent themselves, such as minor children, incapacitated individuals, and unknown heirs. A court appoints attorneys ad litem in different situations, such as heirship proceedings when there are potential unknown heirs to an estate.



Take the following scenario for example. a woman passes away and does not leave a will. The only known heir she has is her husband of many years. Because there is no will to follow, and a court must do its due diligence to determine all potential legal heirs, the court has to rule out the possibility of any children the woman may have had.  There is always the possibility that the woman had been married before, had a child, and gave up a child for a closed adoption, or that she had a child when she was very young that she did not raise and no one knows about. In a situation like this, an attorney ad litem is appointed to represent these possible children in an heirship proceeding, to explore the possibility there may be unknown children of the woman who do exist. However unlikely, the courts must make sure all known heirs are accounted for before allowing an executor or administrator of the estate to liquidate assets and disperse anything to known beneficiaries.
What Is an Attorney Ad Litem and What Do They Do?
In the case of heirship proceedings, the job of an ad litem attorney is to represent someone who cannot represent themselves. This includes people who are:

* Physically incapacitated
* Mentally incapacitated
* Legally incapacitated
* Minor children
* Unknown heirs who may not know about specific court proceedings

In the case of the last point, a court can say they are not sure if heirs (known or unknown) have notice of the probate proceedings, and the court will want to make sure the interests of all heirs are represented. To do this, the court will appoint an attorney ad litem. This type of lawyer is particularly helpful in the event that the deceased had no will, or the original copy of the will was lost, OR beneficiaries listed in the will cannot be found and are considered transient (homeless or have long lost contact with family and friends).

Without an original copy of the will, the law requires an heirship proceeding. An attorney ad litem is tasked with determining if there could be other individuals or unknown heirs out there. Typically, beneficiaries or acquaintances of the deceased can provide the names of some witnesses that are “disinterested” (i.e. not listed in the will or not intestate heirs). If these individuals have known the decedent or their family for many years, the disinterested witness may be able to share that the witness never knew of a will the deceased put together, or the witness might share that the person was married only one time, or that they absolutely never had children.

One case example includes a woman who passed away without a known will. Subsequently, the court could not find anyone from the woman’s childhood. However, the woman had lived in the same apartment for more than thirty years. An attorney ad litem was appointed by the court to investigate any potential heirs. The ad litem spoke with neighbors on both sides of the woman’s home who said they had never seen any visitors, only pets. An ad litem could feel fairly confident that the decedent  was not married and very likely had no children. That information would then be turned over to the judge who would make the final ruling based on the information the ad litem collected.