Recovering Attorney Fees in a Probate Case

One of the issues that often comes up in probate cases is whether the parties can recoup their attorneys fees from the estate. The answer is usually yes, but there are rules involved. The Estate of Pharris, No. 10-17-00260-CV (Ct. App.–Waco 2019), case provides an opportunity to consider these rules.

Facts & Procedural History

This case involved a dependent administration. The dependent administrator was appointed to serve. A third party who was interested in the estate. The court does not explain the relationship, but presumably the interested party was a relative of the decedent.

The probate attorney in question entered an appearance for the interested party. She did not represent the estate or the administrator of the estate.

The probate attorney withdrew from representing the interested party two weeks later.

The probate attorney then filed an application for attorneys fees, which the dependent administrator contested.

The question for the court was whether the probate attorney was entitled to an award of attorneys fees or if the interested party was responsible for paying their own attorneys fees.

Texas Rules for Recovering Probate Attorney’s Fees

The Texas Estates Code includes several provisions that address attorneys fees. Section 352.051 sets out the general rule that an executor is entitled to recover “reasonable attorney’s fees necessarily incurred in connection with the proceedings and management of the estate.” This allows the executor to recover their attorneys fees.

Section 352.052 allows the executor of a will to recover reasonable attorneys fees for will contests. It allows an interested person, other than a creditor, to recover reasonable attorneys fees if the will contest is successful. [Note: there is another provision for attorneys fees for declaratory relief cases–which wasn’t relevant in this case].

Section 351.003 says that a representative, such as an executor, who is removed for failing to fulfill their duties is liable for reasonable attorney’s fees incurred in (1) removing the representative and (2) obtaining compliance regarding any statutory duty the representative has neglected.

Where Probate Attorney Fees Allowable?

This brings us back to this case. The probate attorney in question argued that she was attempting to remove the administrator. If that is the case, it would seem she is entitled to attorneys fees under 351.003.

The dependent administrator’s attorney countered that the probate attorney never filed any pleading seeking relief under section 351.003.

To request that an administrator be removed, one generally starts the process by requesting a show cause hearing and/or submitting an application to be appointed. It doesn’t appear that these were filed in this case.

It isn’t clear from the appeals court decision what steps the probate attorney had taken to remove the administrator. Maybe the steps included correspondence that was not part of the court record. If the interested party was concerned about recovering their probate attorneys fees, they may have filed the correspondence in the court record or made other filings to remove the administrator.

Reviewing the court record, the appeals court noted that the probate attorney was not entitled to fees from the estate, as she didn’t represent the estate or its administrator.

The Summary: When Probate Attorney Fees Are Allowable

This court case helps explain the rules for probate attorney fees in Texas. These rules have to be considered before getting into probate litigation. These rules can be summarized as follows.

The executor is entitled to recoup their attorneys fees from the estate. This includes attorneys fees for administering the estate and for defending, whether successful or not, will contests.

Interested parties generally only get their probate attorneys fees paid by the estate if they are successful in challenging a will or are seeking to remove the executor for failing to fulfill their duties.