In re Estate of Bessire, 399 S.W.3d 642 (Tex. App.—Amarillo 2013, pet. denied).


Estate Administration

Attorney’s Fees

Executor denied fees 


Son was appointed as the independent executor of Mother’s estate.  Son later accused Daughter (his sister) of improperly taking money from Mother’s estate before she died.  Extensive discovery proceedings and legal maneuvering subsequently occurred resulting in Son being removed as the executor and Daughter being appointed in his place.  In addition, Son was denied his attorney’s fees which amounted to over $80,000.  Son appealed.


The appellate court affirmed.  After writing extensively on the procedural aspects of the claim, the court focused on whether the evidence supported a legal theory justifying the trial court’s denial of Son’s attorney fees.  The court began its analysis by recognizing that Son was a fiduciary and was charged with collecting estate property under Probate Code § 233.  However, this duty must be exercised with reasonable care.  The court examined the evidence which revealed that Son actually admitted that he had no basis for his claim that Daughter had taken estate property.  Accordingly, Son’s attorney’s fees were not expended in the best interest of the estate and should not be paid out of estate funds under Probate Code § 242.  The court explained that “when the personal representative’s own omission or malfeasance is at the root of the litigation, the estate will not be required to reimburse the personal representative for his attorney fees.”  Id. at 659.


Moral:  An executor should have an actual basis in fact before seeking to recover estate property.  If an executor makes wild and unsupported accusations which then trigger attorney’s fees, the court is unlike to permit the recovery of those fees from the estate.