In re Estate of Washington, 289 S.W.3d 362 (Tex. App.—Texarkana 2009, pet. denied).

Estate Administration


Denial of Attorney’s Fees is Final Order


A removed executor unsuccessfully petitioned the trial court for attorney’s fees from the estate. The appellate court determined that it had jurisdiction to hear the former executor’s appeal. A request for attorney’s fees is a claim against the decedent’s estate. Probate Code § 312(d) provides that a court’s order approving or disapproving the request has “the force and effect of [a] final judgment[].” Accordingly, the trial court’s order was final and appealable.

Moral: An award or denial of attorney’s fees is a final and appealable order. Accordingly, an appeal must be taken timely rather than waiting until after the final resolution of the probate matter.


Attorney’s Fees


The trial court removed Wife as the dependent executor of her husband’s estate. Wife then asked the court to order her husband’s estate to reimburse her for the attorney’s fees she incurred in defending (1) the removal action and (2) an action to amend or construe a provision of her husband’s will. The trial court denied both requests and Wife appealed.

The appellate court began by explaining that Wife’s request for attorney’s fees did not fall within the purview of the portion of Probate Code § 243 which requires the court to award fees if the fees are incurred to either (1) probate the will or (2) preserve, safe-keep, or manage the estate. The action to amend or construe the will was not an attack on the will. Instead, it was an action to correct an alleged scrivener’s error. Likewise, defending a removal action is not an action to preserve, safe-keep, or manage the estate. Consequently, an award of attorney’s is discretionary. The court then affirmed holding that the trial court did not abuse its discretion when it denied Wife’s request for attorney’s fees.

Moral: Appellate courts are reluctant to overturn a trial court’s failure to award attorney’s fees when such an award is discretionary without a clear showing that the judge abused his or her discretion.