Estate of Nunu, 542 S.W.3d 67 (Tex. App.—Houston [14th Dist.] 2017, pet. denied).

Estate Administration

Attorney's Fees


Brother and Sister battled over Mother’s estate. Sister, the independent executor, used estate funds to pay her attorneys using the authority in Estates Code § 404.0037. Brother claimed Sister is not entitled to the fees because her attorneys committed malpractice and breached duties owned to Sister and the estate. See Burrow v. Arce, 997 S.W.3d 229 (Tex. 1999). The trial court held that this fee payment was proper and Brother appealed.


The appellate court first addressed whether Brother could assert a fee forfeiture claim. The record did not show that Brother pled for a fee forfeiture against her attorneys. Even if Brother had so pled, he lacked standing to assert the claim because Brother was not the attorneys’ client. The court also rejected Brother’s assertion that as a beneficiary of the estate, he could seek fee forfeiture under Texas Civil Practice and Remedies Code § 37.005. Brother has no claim against the attorneys who represented Sister.


Brother also argued that Sister should not be allowed to use estate funds to pay the fees because she did not plead for fees, defend the lawsuit to remove her as executor in good faith, and the fees were not reasonable and necessary. The court held that Sister’s amended answer prayed for the legal fees and that Sister was in good faith. However, Sister paid the fees without a court finding that the fees were both necessary and reasonable. Estates Code § 404.0037 does not permit the executor to pay the fees without a proper court finding. Thus, the court remanded to the trial court for a determination of the amount of the reasonable attorneys’ fees.


Moral:  Before an executor pays attorney fees from estate funds for fees incurred for estate litigation to which the executor is a party, a finding that the fees are reasonable and necessary is first needed.


Application to Compel Distribution


Brother and Sister battled over Mother’s estate. Brother petitioned the court two times for an accounting and distribution of the estate from Sister who was Mother’s independent executrix. See Estates Code § 405.001. The trial court denied Brother’s request and he appealed.


The appellate court affirmed with regard to the first petition. The court held that the trial court’s denial of the petition was not an abuse of discretion. The trial court had sufficient basis for its determination that a necessity for the continuation of the administration of Mother’s estate existed.


However, the appellate court reversed with regard to Brother’s second petition. After reviewing the pleadings, the court determined that no necessity for administration existed after Brother had nonsuited his claims against Sister. Thus, the court reversed and remanded to the trial court to resolve remaining issues regarding the amount of expenses and attorneys’ fees and then to order distribution of the estate. The court pointed out that Brother could specify neither how the estate assets are to be divided nor the date on which estate composition is to be determined.


Moral:  A personal representative should distribute estate property as soon as possible and be careful about asserting creative excuses for not doing so.