Nadolney v. Taub, 116 S.W.3d 273 (Tex. App.—Houston [14th Dist.] 2003, pet. denied).
The order admitting Testator’s will to probate appointed Appraiser.
Executrix later objected to Appraiser’s request for a $35,000 retainer.
Appraiser secured a court order directing Executrix to pay $30,000
directly to Appraiser or into the registry of the court. Executrix
elected to pay the money into the court’s registry. Later, Executrix
filed a bill of review under Probate Code § 31 seeking either to obtain
a fair, market-based fee agreement with Appraiser or to have another
appraiser appointed. The original judge recused himself. At the hearing,
there was testimony showing that Appraiser was appointed because the
judge believed the estate to be taxable when in reality, the estate,
although large, was structured to avoid federal estate tax. The court
granted the bill of review and explained that there was no reason for
the appointment of an appraiser in this case. In a separate cause, the
court permitted Executrix to retrieve the funds she had paid into the
court’s registry. Appraiser appealed.
The court engaged in an extensive discussion of the bill of review
procedure. Then, the court examined Probate Code § 248 which provides
that the trial court must appoint an appraiser either (1) upon
application of an interested party or (2) if the court deems it
necessary. Since no one applied for the appointment of an appraiser, the
appellate court focused on whether the trial court committed substantial
error when it deemed the appointment of an appraiser to be necessary.
The court held that there was sufficient evidence to support the trial
court’s appointment of an appraiser. For example, Executrix would need
to know the value of real property to properly fund the by-pass trust.
However, the court also held that since the administration was
independent under Probate Code § 145, the court had no authority to
order Executrix to pay an advanced appraisal fee to Appraiser or the
court’s registry. Appraiser would be a claimant against the estate and
should proceed as a creditor.
Moral: Overturning the appointment of an appraiser is difficult. Thus, a
personal representative should communicate carefully with the court at
the time of probate regarding whether an appraiser is actually needed so
that the court and the personal representative are “on the same page.”