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Paul v. Merrill Lynch Trust Co. of Texas, 183 S.W.3d 805 (Tex. App.—Waco 2005, no pet. h.).

Estate Administration

Attorney Fees

To Beneficiaries

Beneficiaries sued Executor asserting assorted breaches of duty.  The trial court denied Beneficiaries’ request for attorney’s fees under Probate Code § 245 and the appellate court affirmed.  The court reviewed the probate court’s findings that although Executor’s conduct had sometimes deviated from the ordinary standard of care, Executor’s acts were not willful, malicious, or in bad faith.  Thus, the probate court’s denial of attorney’s fees was not an abuse of discretion.

Moral:  A probate court’s denial of attorney fees will be hard to overturn on appeal.

2.         To Executor

The trial court awarded Executor attorney’s fees for its defense of a removal action brought by Beneficiaries.  The appellate court found that Executor’s defense was in good faith and thus Executor was entitled to recover its attorney’s fees from the decedent’s estate under Probate Code § 149C(c).

Moral:  A probate court’s award of attorney’s fees will be hard to overturn on appeal.

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