Whether or not you are entitled to your attorneys fees in Texas probate will depend on your role in the probate and what kind of proceeding you are involved in.
Do I get Attorney Fees in A Texas Will Contest?
In a Texas will contest there are two instances where you can get fees:
- You are the designated executor in an a will or an alleged will. If you are designated as the executor, you can seek to have the will admitted to probate. Win or lose, you shall be allowed attorney fees from the estate, so long as the action is brought in good faith and with just cause.
- You are a beneficiary under a will or an alleged will. If you are a beneficiary under a will or an alleged will in Texas, you can seek to have a will admitted to probate or defend a will previously admitted. Win or lose, you may be awarded fees, so long as the action is brought in good faith and with just cause.
Section 352.052 of the Texas Estates Code addresses attorney fees for the defense or successful contest of a will and states:
(a) A person designated as executor in a will or an alleged will, or as administrator with the will or alleged will annexed, who, for the purpose of having the will or alleged will admitted to probate, defends the will or alleged will or prosecutes any proceeding in good faith and with just cause, whether or not successful, shall be allowed out of the estate the executor’s or administrator’s necessary expenses and disbursements in those proceedings, including reasonable attorney’s fees.
(b) A person designated as a devisee in or beneficiary of a will or an alleged will who, for the purpose of having the will or alleged will admitted to probate, defends the will or alleged will or prosecutes any proceeding in good faith and with just cause, whether or not successful, may be allowed out of the estate the person’s necessary expenses and disbursements in those proceedings, including reasonable attorney’s fees.
(c) In this subsection, “interested person” does not include a creditor or any other having a claim against the estate. An interested person who, in good faith and with just cause, successfully prosecutes a proceeding to contest the validity of a will or alleged will offered for or admitted to probate may be allowed out of the estate the person’s necessary expenses and disbursements in that proceeding, including reasonable attorney’s fees.
Who Pays Attorney Fees For a Will Contest?
Section 352.052 fees are payable from the estate. Fees do not come from the individual litigants.
Therefore, if you are awarded fees from this section, the fees will come out of the estate assets, which, if you are a beneficiary, would diminish your share.
Can I Hire A Lawyer on A Contingent Fee Basis in a Texas Probate?
Yes. An attorney can represent the personal representative on a contingent fee basis.
Under Texas Estates Code 351.152, the fee must be approved by the court if the fee exceeds 1/3 of the potential recovery. Any contingent fee contract that violates the section is void, unless ratified or reformed by the court. The statute gives the court factors to consider in approving a contract for a contingent fee exceeding 1/3 of the potential recovery, including:
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill required to perform the legal services properly;
(2) the fee customarily charged in the locality for similar legal services;
(3) the value of the property recovered or sought to be recovered by the personal representative under this subchapter;
(4) the benefits to the estate that the attorney will be responsible for securing; and
(5) the experience and ability of the attorney who will perform the services.
Personal Representative Attorney’s Fees – TEC 352.051
Texas Estates Code 352.051 provides that:
On proof satisfactory to the court, a personal representative of an estate is entitled to:
(1) necessary and reasonable expenses incurred by the representative in:
(A) preserving, safekeeping, and managing the estate;
(B) collecting or attempting to collect claims or debts; and
(C) recovering or attempting to recover property to which the estate has a title or claim; and
(2) reasonable attorney’s fees necessarily incurred in connection with the proceedings and management of the estate.
Other Attorney Fees in Texas Probate
Fees for Removal or Neglect of Duty of a Personal Representative – TEC 351.003
Texas Estates Code 351.003 provides that a personal representative is liable for fees in a removal or neglect of duty action:
If a personal representative neglects to perform a required duty or is removed for cause, the representative and the sureties on the representative’s bond are liable for:
(1) the costs of removal and other additional costs incurred that are not expenditures authorized by this title; and
(2) reasonable attorney’s fees incurred in:
(A) removing the representative; or
(B) obtaining compliance regarding any statutory duty the representative has neglected.
Payment of Expenses and Attorney’s Fees for Collection of Estate Taxes- TEC 124.018
The court shall award necessary expenses, including reasonable attorney’s fees, to the prevailing party in an action initiated by a person for the collection of estate taxes from a person interested in the estate to whom estate taxes were apportioned and charged under Section 124.005.
Emergency Intervention Regarding Funeral and Burial Expenses – TEC 152.051
A litigant who files an emergency intervention motion to pay funeral and burial expenses is entitled to recover reasonable and necessary attorney’s fees.
Inclusion of Attorney’s Fees in Claim – TEC 355.003
If the underlying instrument on which a claim is based provides a basis for fees, claimants can include fees incurred in preparing and collecting their claim.
Costs and Expenses Related to Removal of Independent Executor – TEC 404.0037
In removal actions of an independent executor:
(a) An independent executor who defends an action for the independent executor’s removal in good faith, whether successful or not, shall be allowed out of the estate the independent executor’s necessary expenses and disbursements, including reasonable attorney’s fees, in the removal proceedings
(b) Costs and expenses incurred by the party seeking removal that are incident to removal of an independent executor appointed without bond, including reasonable attorney’s fees and expenses, may be paid out of the estate.
Fees for Judicial Discharge – TEC 405.003
Upon court approval, an independent executor who seeks judicial discharge is entitled to recover fees incurred in preparing the final account.
Attorney Fees in Texas probate do not have to be complicated. Before you bring your action, you should consider whether you are entitled to attorney fees.