[Back to Index]     [Back to 2005 Texas Case Summaries]

In re Estate of Stanton, 202 S.W.3d 205 (Tex. App.—Tyler 2005, pet. denied).

 Estate Administration

After Temporary Administrator’s appointment expired under Probate Code § 131A, he filed a request for payment of legal services he performed while serving as the temporary administrator.  He also served as the attorney for several parties asking for appointment as the permanent administrator and sought to have himself reappointed as the temporary administrator.  The duly appointed Attorney Ad Litem for the decedent’s unknown heirs under Probate Court § 34A opposed these applications and asked the court to appoint an independent party as the administrator.  The probate court agreed, appointed a third-party as the administrator, and denied Temporary Administrator’s request for attorney’s fees.  Temporary Administrator appealed.

A.         Determination of Heirship – Authority of Attorney ad Litem

The court explained the Attorney Ad Litem had standing to oppose the applications and request the appointment of an independent third-party administrator.  The Attorney Ad Litem owes the same duty to the unknown heirs as he would owe to clients who expressly employ him.  If the unknown heirs had been present, they could have opposed the applications and requested the appointment of an independent third-party administrator and thus Attorney Ad Litem had both the standing and the authority to do so as well.

Moral:  The attorney ad litem for unknown heirs may take all actions for the unknown clients as the attorney ad litem could take for actual known clients.

B.         Appointment of Administrator – Unsuitability

The court rejected Temporary Administrator’s argument that the probate court abused its discretion in appointing a third party as the administrator because the applicants had higher priority under Probate Code § 77.  The court explained that all of the other applicants had a demonstrated history of exceeding their authority in this case and thus the probate court could reasonably conclude that they were unsuitable to serve.  For example, Temporary Administrator filed an application to determine heirship without obtaining court permission and the other applicants continued to manage estate property without court authorization even after the temporary administration had ended.

Moral:  Taking actions that require court authorization without obtaining that authorization is sufficient grounds for a court to determine that the person is unsuitable to serve as a personal representative.

C.         Award of Attorney’s Fees

The probate court denied Temporary Administrator’s request for attorney’s fees because it could not distinguish the fees for work he performed as a temporary administrator from the legal fees for his services, some of which were for services not authorized by the probate court.  However, the probate court indicated that he could refile his application.  The appellate court determined that the refusal was justified and that Temporary Administrator still had the possibility of recovering a portion of the requested fees upon making an appropriate application.

Moral:  A temporary administrator should perform only those actions authorized by the court.  A temporary administrator who is also an attorney should separately identify the services performed in each capacity.

D.         Expenses of Attorney ad Litem

The appellate court agreed that the probate court had the power to order a deposit from estate funds to be paid to the attorney ad litem for expenses which would be incurred in investigating the large number of potential heirs.  Probate Code § 12(a).  The court also stated that the attorney ad litem is entitled to reasonable attorney’s fees and expenses on appeal.

Moral:  A personal representative needs to be prepared to make a deposit for the expenses of the attorney ad litem.

E.         Bond

The appellate court determined that the amount of bond set for the administrator was proper because it exceeded the value of the property except for the property that had already been placed in safekeeping.  Probate Code § 194(6).

Moral:  Bond may be reduced by the amount of estate property placed in safekeeping.

[Back to Index]     [Back to 2005 Texas Case Summaries]