Young v. First Community Bank, 222 S.W.3d 454 (Tex. App.—Houston [1st Dist.] 2006, no pet.).

Estate Administration

Appellate Jurisdiction


Creditor petitioned to remove Executrix from office alleging that she failed to file the inventory, appraisement, and list of claims and sought attorney fees. The probate court did not remove Executrix but did award Creditor attorney fees for its removal attempt. Executrix appealed.

The appellate court dismissed the appeal concluding that it lacked jurisdiction. The court explained Probate Code § 149C under which Creditor received its attorney fees does not provide that an order pursuant thereto is final and appealable. The court also indicated that Executrix did not seek to severe the award of attorney’s fees and that the probate court’s judgment did not dispose of all parties or issues in a particular phase of the proceedings. Thus, consistent with the Texas Supreme Court cases of De Ayala v. Mackie, 193 S.W.3d 575 (Tex. 2006) and Crowson v. Wakeham, 897 S.W.2d 779 (Tex. 1995), the court concluded that the award of attorney fees was interlocutory and consequently not appealable.

Moral: A party appealing a lower court’s probate order must make certain the order is appealable. If in doubt, the party wishing to appeal should take some action such as seeking a severance order.