In re Estate of Miller, 243 S.W.3d 831 (Tex. App.—Dallas 2008, no pet.).
Attorney was named as the independent executor of his great-uncle’s
will. Before being appointed by the court, he entered into a fee
agreement with Beneficiary that include provisions for Attorney to
receive a contingency fee. After being appointed, Attorney hired himself
as the attorney for the estate. Attorney was not a beneficiary of the
will nor was he entitled to a fee under the terms of the will. Attorney
filed the inventory over one year late. Later, he sold some of the
estate property taking almost $100,000 in “compensation.” (Note that
experts testified that Attorney’s services were worth about $5,000).
Beneficiary filed an ancillary action to have Attorney removed as the
executor alleging that Attorney grossly mismanaged the estate. For
example, Attorney lent estate money to one of his other clients and did
not pay property taxes causing the property to be scheduled for
foreclosure. The trial court agreed, removed Attorney, and ordered him
to reimburse the estate for the fees he received. Attorney appealed and
the appellate court affirmed.
The court reviewed Attorney’s actions and found that they amounted to
gross mismanagement of the estate under Probate Code § 149C. For
example, he unnecessarily delayed performing the administration of the
estate, he improperly made excessive fee payments to himself, he lent
estate property to a client without receiving a promissory note or
collateral, and he did not make property tax payments.
Note: The court included a detailed discussion of why it was proper for
the trial court to exclude evidence supporting Attorney’s fee claim.
Moral: An attorney serving as a personal representative should not
mismanage the estate. The attorney should not charge excessive fees,
make late filings, drag out the administration of the state, lend estate
property to others, or otherwise breach fiduciary duties.