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Fees and Expenses For Defending A Texas Will

Who gets their fees paid for defending a will under Texas law?  The parties in the September 2019 case of Austin v. Austin disputed entitlement to fees under Texas law.  In Austin, both sides were awarded fees from the Texas estate.

The Facts of Austin v. Austin

Austin concerned a dispute over two competing wills of Morris Austin, Jr.  The will dispute was between decedent’s two daughters and his surviving spouse, Betty.

The daughters applied to probate an April 6, 2016 will appointing them as co-executors, and naming the daughters as the principal beneficiaries (the “April Will”).   The April Will was admitted to probate and the daughters were appointed as independent co-executors.

Nine days later, Betty cross-applied to probate a December 16, 2016 Will (the “December Will”).  The December Will made Betty the sole beneficiary of decedent’s estate.  The daughters contested the December Will and alleged that the signature on the December Will was a forgery.  The Texas probate court admitted the December Will to probate.

The daughters and Betty filed separate motion for attorney’s fees out of the estate pursuant to section 352.052 of the Texas Estates Code.  The Texas probate court granted both motions.

The daughters appealed the order admitting the December 2016 Will to probate and award of attorney’s fees to Betty.  Betty appealed the award of attorney’s fees to the daughters.

The Texas appeals court affirmed the orders.

Who Gets Fees Under Texas Law For Defending A Will?

A person designated as an executor, administrator, devisee, or beneficiary is allowed fees for defending an alleged will under Texas law.

Section 352.052 of the Texas Estates Code addresses “Allowance for Defense or Successful Contest of 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.

Can Attorney’s Fees Be Awarded For Defending A Will Already Admitted to Probate?

Yes.  In Austin, Betty appealed the award of fees to the daughters under section 352.052.

Betty (who successfully petitioned to admit the December Will to probate) argued that the fees incurred by the daughters for opposing Betty’s petition were not recoverable because the April Will had already been admitted to probate.  Betty argued that the phrase in section 352.052 “for the purpose of having the will or alleged will admitted to probate” limited recovery to fees incurred before the trial court admits a will to probate.  Therefore, the daughters should not be entitled to fees for defending a will that had already been admitted to probate.

The Texas appeals court disagreed with Betty, stating:

But the Legislature has clearly contemplated that an interested person may contest the validity of a will that has already been admitted to probate. See, e.g., id. § 256.204(a) (“After a will is admitted to probate, an interested person may commence a suit to contest the validity thereof not later than the second anniversary of the date the will was admitted to probate[.]”). When read as a whole, nothing in the text of Section 352.052 indicates the Legislature intended to exclude persons who defend a will after its admission to probate.

Is A Challenge To A Later Will Also A Defense Of An Earlier Will’s Admission To Probate?

Yes, a challenge to a later will is also a defense of an earlier will’s admission to Texas probate and creates an entitlement to fees.  In Austin, Betty also argued that the daughters could not recover fees because they were not defending the April Will.  Betty was not contesting the validity of the April Will, she was seeking to admit a later will, so the daughters were will contestants, not will defenders.

Betty is correct to the extent that a timely application to probate a later will on the sole ground it was executed later “is neither a contest of the validity nor barred by the probate of an earlier will.” See In re Estate of Morris, 577 S.W.2d 748, 752 (Tex. App.—Amarillo 1979, writ ref’d n.r.e.). But that does not mean the Daughters’ attacks on the December Will were not in defense of the April Will. Because an order probating a later will revokes probate of an earlier will, by challenging the validity of the December Will the Daughters were effectively defending the April Will’s admission to probate.

Because the daughters were defending the April 2016 Will, the daughters were eligible to recover fees under Texas Estates Code Section 352.052.  Betty was entitled to her fees for defending the December 2016 Will against the daughter’s challenge.

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Find Your Texas Probate Star

San Antonio

Gilbert Vara, Jr.

Austin

Kyle Robbins

Houston

Grace P. Shoemakers

Dallas

Steven S. Boss

Williamson County

Lorenza Cigarroa

Grayson County

Jacob Pelley