Case Information
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The Attorney General of Texas June 18, 1984 JIM MATTOX
Attorney General OVERRULES IN PART BY JM-346 Telex Telecopier 5121475-2501 Supreme Austin, P. 0. Box 12546 9101674-1367 TX. 76711. Court Building 5121475.0266 [2546] Dallas, Texas Dallas County Criminal District Attorney Honorable Henry Wade Services Building 75202 Opinion No. JM-168 Re: Filing fees for suits ancillary to a probate matter Dear Mr. Wade: 714 Jackson. Suite 700 Dallas, TX. 75202.4506
You have requested our opinion concerning the filing fee required 2141742-6944 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 initial filing and any supplemental instruments which may be filed El Paso, TX. 79905.2793 after the filing of an order approving the "inventory and appraise- 9151533-3484 ments" or after the filing of the inheritance or estate tax,receipt,
whichever occurs first. P 1 Texas. Suite 700 sto”, TX. 77002.3111 The fees which county clerks may impose for filings in the civil t 4 31223.5886 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 to 40 dollars for original causes of action filed in probate court. 806 Broadway, Suite 312 Id. 91B(l)(a). Lubbock, TX. 79401.3479 - 6061747-5236
The statute also specifies the fee to be collected for filing and recording instruments in an open probate docket (after the inventory 4309 N. Tenth, Suite B and appraisement or inheritance/estate tax receipt has been filed), a McAllen, TX. 76501-1665 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 probate court cause or docket is $25.00. Id. §lB(l)(c). -
200 Main Plaza, Suite 400 San Antonio. TX. 76205.2797 You contend that an initial filing fee of $25.00 should be 512/225-4191 collected for matters filed under sections 5 and 5A of the Probate Code, but that additional instruments must be filed without charge. An Equal Opportunity/ 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 *2 . --.
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.d 514 (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
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
David Brooks
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton