Untitled Texas Attorney General Opinion

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The Attorney General of Texas
JIM MATTOX June 18, 1984
Attorney General
OVERRULES IN PART BY JM-346
Supreme Court Building Honorable Henry Wade Opinion No. JM-168
P. 0. Box 12546
Austin, TX. 76711. 2546
Criminal District Attorney
5121475-2501 Dallas County
Telex 9101674-1367 Services Building Re: Filing fees for suits
Telecopier 5121475.0266 Dallas, Texas 75202 ancillary to a probate matter
714 Jackson. Suite 700
Dear Mr. Wade:
Dallas, TX. 75202.4506
2141742-6944 You have requested our opinion concerning the filing fee required
for certain documents in actions ancillary to probate proceedings.
You wish to know specifically what fee should be charged for the
4624 Alberta Ave., Suite 160
El Paso, TX. 79905.2793
initial filing and any supplemental instruments which may be filed
9151533-3484 after the filing of an order approving the "inventory and appraise-
ments" or after the filing of the inheritance or estate tax,receipt,
whichever occurs first.
1 Texas. Suite 700
P sto”, TX. 77002.3111
The fees which county clerks may impose for filings in the civil
t 431223.5886
court dockets and in the probate court dockets are controlled by
article 3930(b), V.T.C.S. This statute requires fees ranging from 10
806 Broadway, Suite 312 to 40 dollars for original causes of action filed in probate court.
Lubbock, TX. 79401.3479 Id. 91B(l)(a).
6061747-5236
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The statute also specifies the fee to be collected for filing and
4309 N. Tenth, Suite B recording instruments in an open probate docket (after the inventory
McAllen, TX. 76501-1665 and appraisement or inheritance/estate tax receipt has been filed), a
512,662.4547 fee of $3.00 for the first page and $2.00 for subsequent pages. Id.
§lB(l)(b)(i). The filing fee for an adverse action or contest in a
200 Main Plaza, Suite 400 probate court cause or docket is $25.00. -Id. §lB(l)(c).
San Antonio. TX. 76205.2797
512/225-4191 You contend that an initial filing fee of $25.00 should be
collected for matters filed under sections 5 and 5A of the Probate
An Equal Opportunity/
Code, but that additional instruments must be filed without charge.
Affirmative Action Employer
Section 5(d) of the Probate Code permits courts which exercise
original probate jurisdiction to determine matters inci.dent to an
estate. Section 5A defines proceedings "incident to an estate" to
include the probate of wills, letters testamentary, determination of
heirship. claims against the estate, title questions, and generally
the settlement of the estates of wards and deceased persons. See,
u Klein and Associates v. Klein, 637 S.W.2d 507 (Tek. Civ. App. -
Eastland 1982, no writ) (suit by physician against wife of deceased
p. 740
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Honorable Henry Wade - Page 2 (JM-168)
husband for services rendered to latter held not to be a matter
"incident to an estate" without joinder of husband's estate); Boman v.
Howell, 618 S.W.2d 913 (Tex. Civ. App. - Fort Worth 1981, no writ)
(construction of will held matter incident to probate); Taylor V.
Lucik, 584 S.W.2d 503 (Tex. Civ. App. - Dallas 1979, writ granted)
(suit to enjoin beneficiary from encumbering property held not to be
one incident to an estate), rev'd 596 S.W.2.d514 (Tex. 1980).
We believe that any independent suit or cause of action which is
properly considered one incident to an estate must be filed in probate
court upon payment of a $25.00 fee pursuant to article 3930(b),
section lB(l)(c), which provides such a fee for every "adverse action
or contest," excluding claims against estates.
The fee for filing or recording instruments in an open probate
docket after the order approving the inventory and appraisement or
after filing the tax receipt is $3.00 for the first page and $2.00 for
subsequent pages. V.T.C.S. art. 3930(b), §lB(l)(b)(i). Even though
an ancillary probate action is a separate cause, it is nevertheless
filed in an open probate docket. The statute is very clear that every
instrument filed after the inventory and appraisement or after the tax
receipt bears a filing fee of $3.00 for the first page and $2.00 for
each subsequent page. We believe that supplemental instruments filed
in connection with an ancillary probate action are subject to these
fees if the instruments are filed after the inventory and appraisement
have been approved or after the inheritance or estate tax receipt has
been filed.
SUMMARY
Ancillary probate actions which are incident to
sn estate must pay a filing fee of $25.00.
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by David Brooks
Assistant Attorney General
p. 741
Honorable Henry Wade - Page 3 (JM-168)
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
David Brooks
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton
p. 742