ATTORNEY’S FEES UNDER SECTION 242 OF THE PROBATE CODE ARE RECOVERABLE FROM THE ESTATE, NOT OPPOSING PARTIES

Jones v. Coyle
Dallas Court of Appeals, No. 05-13-01139-CV (November 13, 2014)
Justices Bridges, Lang, and Evans (Opinion)
On an issue of first impression, the Dallas Court of Appeals held that a court cannot award attorney’s fees against a party under section 242 of the old Probate Code (now recodified at section 352.051 of the Estate Code), but can only assess such fees against the estate. The appellant, Susan Jones, alleged that the appellee, Karen Coyle, had wrongfully withheld property of the estate and that Jones, as the personal representative of the estate, incurred $27,000 in fees to get the property returned. Jones appealed the probate court’s denial of a motion requesting that her attorney’s fees be assessed against Coyle. Section 242 of the Probate Code provides that personal representatives of the estate are “entitled to all necessary and reasonable expenses incurred by them in the preservation, safekeeping, and management of the estate, and in collecting or attempting to collect claims or debts, and in recovering or attempting to recover property to which the estate has a title or claim.” The Code does not specify from whom those expenses may be recovered, and no Texas court had considered the question. The Dallas Court concluded the language of the statute did not allow for fees to be shifted to the party that withheld estate property; fees may only be reimbursed through estate funds. The court rejected Jones’s argument that it would be “just, fair, and right for the legislature to have provided for fee shifting to adversaries of personal representatives who withhold the estate’s property,” holding that such policy decisions must be left to the legislature.
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