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Statutory Bases of Declaratory Judgments

Statutory Bases of Declaratory Judgments for a San Antonio Estate Lawyer.


Requesting an Executor Judicial Discharge

Texas Estates Code § 405.003 provides the mechanism for Judicial Discharge of an Independent Executor.

Requirements to Obtain Judicial Discharge

To obtain judicial discharge the following must happen.

  1. Prior to a San Antonio estate lawyer requesting the discharge, the independent executor must first have distributed all remaining assets after all debts have been paid (except for a reasonable reserve pending court approval.1
  2. The independent executor must file an action for declaratory judgment seeking discharge “from any liability involving matters relating to the past administration of the estate that have been fully and fairly disclosed.”2
  3. All beneficiaries must be personally served with citation unless waived.3
  4. The court may require the independent executor to file a final account (and audit the account) to include any information the court considers necessary to adjudicate the request for discharge of liability.4 The probate court may audit, settle, or approve the final account required by it.

Independent Executor Legal Fees

The independent executor is entitled to pay from the estate all legal fees, expenses, or other costs, but is personally responsible to refund any amount not approved by the court as a proper charge against the estate.5 In addition, the trial court, upon request by the San Antonio estate lawyers, could refuse to award probate attorneys’ fees to the executor, which appears generally to occur when there is a failure to exercise good faith.6

An executor who has been judicially discharged following request by the San Antonio estate attorneys, “obtain[s] a judicial discharge from fiduciary service and [obtains] a shield from any liability involving matters relating to the past administration of the estate that have been fully and fairly disclosed.”7

Prior to the enactment of the judicial discharge statute in the 76th Legislature, Texas law did not prescribe a procedure for independent executors of estates to obtain a release of any kind. These independent representatives were the only fiduciaries without such a remedy. As such, an executor could have been forced by beneficiaries, via litigation, to distribute all assets and defend any subsequent lawsuits with the executor’s own money. Even if the executor ultimately had won a suit brought by beneficiaries, the executor would have had to look to the beneficiaries for payment. If the beneficiaries had spent all of the estate’s funds the executor would have had no remedy.8

Judicial discharge of the executor is, again, only available after all assets have been marshaled and all debts paid.

Will Contest Proceedings Under Texas Property Code

The Texas Property Code § 115.001 gives original and exclusive jurisdiction (except for, among other limited situations, the jurisdiction conferred on a statutory probate court or county court at law) over all proceedings by or against a trustee and all proceedings concerning trusts to the district court.

Will Contest Proceedings Under District Court Jurisdiction

The proceedings including but not limited to the following: 9

  1. Construe a trust instrument
  2. Determine the law applicable to a trust instrument
  3. Appoint or remove a trustee
  4. Determine the responsibilities, powers, duties, and liability of a trustee
  5. Ascertain beneficiaries
  6. Make fact determinations affecting the administration, distribution, or duration of a trust
  7. Determine a question arising in the administration or distribution of a trust
  8. Relieve a trustee from any or all of the duties, limitations, and restrictions otherwise existing under the terms of the trust instrument or of this subtitle
  9. Require an accounting by a trustee, review trustee fees, and settle interim or final accounts
  10. surcharge a trustee

While this section of the Property Code is purely jurisdictional it does confer jurisdiction to make trust constructions, determine a trustee’s powers, determine questions arising under trusts, etc. Thus, a San Antonio estate lawyer should note that it is certainly conceivable to petition a statutory probate court for declaratory relief solely, if not alternatively, under the Property Code in certain cases involving a request for declaration involving a trust and in which a statutory probate court is vested with concurrent jurisdiction.

The Texas Supreme Court considered an appeal filed by appellate attorneys from a ruling by a statutory county court at law on this issue and held that the statutory county court at law did not have jurisdiction.10 However, the jurisdiction of a district court over proceedings concerning trusts is exclusive except for the jurisdiction conferred by law on a statutory probate court.11

If a declaration is sought concerning a trust and referencing Tex. Prop. Code § 115.001(a) and (d), but brought by San Antonio estate lawyers in the probate court based on concurrent jurisdiction, some confusion could arise with respect to the standard for recovery of attorneys’ fees.

San Antonio Estate Lawyer Legal Fees

The attorneys’ fees standard is arguably different in the Property Code trust context than as concerns San Antonio trust or estate attorneys under the Civil Practice and Remedies Code.

Civil Practice and Remedies Code

“CPRC §37.009: In any proceeding under this chapter, the court may award costs and reasonable and necessary attorney’s fees as are equitable and just.”
Tex. Civ. Prac. & Rem. Code § 37.009

Property Code

“Prop. Code 114.064: In any proceeding under this code the court may make such award of costs and reasonable and necessary attorney’s fees as may seem equitable and just.”
Tex. Prop. Code § 114.064; Contact Products, Inc. v. Dixico Inc., 672 S.W.2d 607, 610 (Tex. App. – Dallas 1984, no writ)

Under a request for declaration in a trust or estate matter plead under the Civil Practice and Remedies Code, the standard appears to mandate an “equitable and just” finding. In contrast, the Trust Code simply requires a court to determine that the San Antonio estate attorneys’ fees “may seem equitable and just.” The Trust Code “seems” to be a more relaxed standard not generally present in other, analogous situations involving the determination of attorneys’ fees.

1 Tex. Est. Code § 405.003(d)
2 Tex. Est. Code § 405.003(a)
3 Tex. Est. Code § 405.003(b)
4 Tex. Est. Code § 405.003(c)
5 Tex. Est. Code § 405.003(e)
6 Kanz v. Hood, 17 S.W.3d 311 (Tex. App. – Waco 2000)
7 In re Estate of Whittington, 409 S.W.3d 666, 670 (Tex. App. – Eastland 2013, no pet.)
8 But what of the law, “No good deed goes unpunished?” Perhaps Murphy is operating conspiratorially
9 Tex. Prop. Code § 115.001(a)(1 – 10)
10 Carroll v. Carroll, 304 S.W.3d 366, 368 (Tex. 2010)
11 Tex. Prop. Code § 115.001(a), (d); Tex. Est. Code § 32.007; Gammill v. Fettner, 297 S.W.3d 792, 798 (Tex. App.—Houston [14th Dist.] 2009, no pet.)


James Carter | Texas Will Contest Lawyer

James W. Carter

James Carter practices law in the areas of probate, trust, and real estate litigation at Langley & Banack’s San Antonio location. Mr. Carter is known as a strong fiduciary litigation attorney with a proven track record in trying complex will contest cases. The San Antonio Business Journal presented Mr. Carter the Outstanding Lawyer Award in 2016, and he is also AV-rated “Preeminent” by Martindale-Hubbell. Mr. Carter is a frequent speaker and author on matters involving Texas probate, estate, and trust litigation.


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