Estate of Navar v. Fitzgerald, 14 S.W.3d 378 (Tex. App.—El Paso 2000, no pet.).


In response to Creditor’s application, the court ordered Administrator to post bond or else risk being removed from office. Administrator appealed.

The court examined the posture of the case and determined that the court’s order was interlocutory and hence not appealable. Probate Code § 5(f) provides that an order must be final before it may be appealed. In reaching its decision, the court applied the test set forth in the landmark Texas Supreme Court case of Crowson v. Wakeham, 897 S.W.2d 779, 783 (Tex. 1995):

If there is an express statute . . . declaring the phase of the probate proceedings to be final and appealable, that statute controls. Otherwise, if there is a proceeding of which the order in question may logically be considered a part, but one or more pleadings also part of that proceeding raise issues or parties not disposed of, then the probate order is interlocutory.

The court recognized that application of this test may be difficult and that the appellate courts are divided regarding the ramification of Crowson on the “substantial right” test. However, the court determined that under no interpretation of the test is the lower court’s order final. The court’s order merely required bond and indicated that failure to post bond could result in removal – it did not adjudicate a substantial right and it is part of the overall creditor payment process and thus is not appealable.

Moral: To avoid wasting a client’s money and the court’s time, carefully consider whether a probate court’s order is final before filing an appeal.