Estate Administration


Nadolney v. Taub, 116 S.W.3d 273 (Tex. App.—Houston [14th Dist.] 2003, pet. denied).


The order admitting Testator’s will to probate appointed Appraiser. Executrix later objected to Appraiser’s request for a $35,000 retainer. Appraiser secured a court order directing Executrix to pay $30,000 directly to Appraiser or into the registry of the court. Executrix elected to pay the money into the court’s registry. Later, Executrix filed a bill of review under Probate Code § 31 seeking either to obtain a fair, market-based fee agreement with Appraiser or to have another appraiser appointed. The original judge recused himself. At the hearing, there was testimony showing that Appraiser was appointed because the judge believed the estate to be taxable when in reality, the estate, although large, was structured to avoid federal estate tax. The court granted the bill of review and explained that there was no reason for the appointment of an appraiser in this case. In a separate cause, the court permitted Executrix to retrieve the funds she had paid into the court’s registry. Appraiser appealed.

The court engaged in an extensive discussion of the bill of review procedure. Then, the court examined Probate Code § 248 which provides that the trial court must appoint an appraiser either (1) upon application of an interested party or (2) if the court deems it necessary. Since no one applied for the appointment of an appraiser, the appellate court focused on whether the trial court committed substantial error when it deemed the appointment of an appraiser to be necessary. The court held that there was sufficient evidence to support the trial court’s appointment of an appraiser. For example, Executrix would need to know the value of real property to properly fund the by-pass trust. However, the court also held that since the administration was independent under Probate Code § 145, the court had no authority to order Executrix to pay an advanced appraisal fee to Appraiser or the court’s registry. Appraiser would be a claimant against the estate and should proceed as a creditor.

Moral: Overturning the appointment of an appraiser is difficult. Thus, a personal representative should communicate carefully with the court at the time of probate regarding whether an appraiser is actually needed so that the court and the personal representative are “on the same page.”