Jones v. Coyle, 451 S.W.3d 486 (Tex. App.—Dallas 2014, no pet.).

Estate Administration

Attorneys Fees


Independent Executrix demanded that Beneficiary return property belonging to Testatrix so that this property could be properly administered.  Beneficiary refused and the probate court allowed Beneficiary to retain the estate property.  After obtaining a writ of mandamus to force the turnover, Executrix asked the probate court to award her attorneys’ fees against Beneficiary under Probate Code § 242 [recodified as Estates Code § 352.051].  The probate court refused and Executrix appealed.


The appellate court affirmed holding that the probate court lacked the discretion to hold Beneficiary responsible for the attorneys’ fees.  Instead, the estate is responsible for the fees.  The court explained that Texas follows the “American Rule” that fee awards are not allowed unless expressly authorized by a statute or a contract.  The court closely examined the statute and found no basis for shifting the fees from the estate to the losing party.  Although the statute is written in the passive voice and does not state from whom the court should order the payment of fees, the court noted that fees are awarded regardless of whether the personal representative wins or loses the case.  Thus, it is implied that the estate is responsible, not another party.


The court did, however, provide future litigants with sage advice by recommending that they seek attorneys’ fees under other statutes which authorize them such as the Texas Theft Liability Act.


Moral:  Under the Estates Code, the court lacks the authority to award the winner’s attorneys’ fees against the losing party even if failure to do so significantly reduces the size of the decedent’s estate.


Note:  In a trust case, however, Property Code § 114.064 allows the court to make an award of costs and attorneys’ fees against any party as long as the award is “equitable and just.”