Litigating disputes in probate matters is just as expensive and time-consuming as litigation in other types of cases. However, because most probate lawyers do not handle contested matters in probate courts on a regular basis, recovering attorney’s fees and expenses can be very confusing. The statutes and rules which apply to attorney’s fees in probate matters are difficult to locate and even harder to understand. The purpose of this paper is to discuss various matters that may be litigated in probate courts and how, or if, the litigants can recover attorney’s fees. This paper will cover matters involving decedent’s estates but not those involving guardianships, although many of the concepts will be identical. Further, since fees incurred by a personal representative can generally be charged to the Estate under Estates Code §352.051 [Probate Code §242], this article will focus on the fees which may be recoverable for litigants such as beneficiaries and creditors. The Estates Code is not effective until January 1, 2014. Therefore, parallel cites are provided to the Probate Code.

There is a cautionary note to keep in mind when a cause of action allows the recovery of attorney’s fees. The attorney must be careful when explaining this concept to the client. While the client may, through an engagement letter, become obligated to pay fees to the attorney, the client must understand that every dollar that the client owes to the attorney may not be recoverable in the litigation – even if there is a statute that allows the recovery. First, the court or the jury may not award everything that is supported by the admissible evidence. Second, the trust or the estate may not have sufficient funds to pay the full judgment. Third, even in rare cases when fees are charged against the losing party, that party may be judgment-proof. In other words, the client must distinguish between the fees owed to the attorney according to the engagement letter and the amount that may be recoverable after trial or settlement.

Originally published in the State Bar of Texas 37th Annual Advanced Estate Planning And Probate Course - Chapter 26.