Kirkland v. Schaff, 391 S.W.3d 649 (Tex. App.—Dallas 2013, no pet.).


Estate Administration

Attorney’s Fees


The appellate court held that the probate court erred in allowing a trial amendment to request attorney’s fees under Probate Code § 245.  The probate court had already issued a final order removing the administrator from office.  Accordingly, “the probate court abused its discretion by granting the trial amendment and awarding appellees attorney’s fees after the probate court’s final order removing appellant as administrator was signed.”  Id. at 655.

Moral:  A party to a probate dispute who wishes to recover attorney’s fees should request them in the original complaint or answer, or as shortly thereafter as possible.


 Removal of Personal Representative


The probate court removed decedent’s surviving spouse as the administrator of her husband’s estate under Probate Code § 222 finding that she was guilty of gross misconduct and mismanagement in the performance of her duties.  The appellate court reviewed the evidence and affirmed the removal.  The list of grounds supporting the removal was lengthy and included such conduct as misappropriating property which would pass to her step-children by intestacy, failing to account for the value of the decedent’s business, and under reporting income from that business to the I.R.S.


Moral:  A step-parent may not be pleased that the deceased spouse’s one-half of the community along with a majority of the deceased spouse’s separate property passes to step-children upon an intestate death and thus fail to protect the step-children’s rights.