Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:A county court granted William R. Bayne’s application in 2000 to have his mother declared incapacitated and a guardian placed in charge of her persona and estate. The American National Bank of Texas was named temporary guardian of the woman’s estate. A permanent guardianship was then entered, with Bayne named permanent guardian of his mother’s estate and the bank acting as temporary guardian of Bayne’s mother, continuing to manage her assets until and unless ordered otherwise by the court. The mother died in 2003. As part of the probate of her will, the county court signed an order agreed to by Bayne and the bank ordering the bank to transfer all of the mother’s assets to Bayne as the independent executor of his mother’s estate. The bank was to reserve $11,500 in cash in case any disputes aroses. The bank did so. Three months later, in November 2003, the bank applied in both the guardianship and probate proceedings for the county court to transfer back over $100,000 from the mother-as-decedent’s estate into the mother-as-ward’s estate. The guardianship court directed the bank and another others with possession of the assets of “the ward” to pay the Bank’s claim for $5,668 and an attorney’s claim for $8,283. The bank applied to the county court in both proceedings for authority to pay the attorney $2,953 from the remaining assets of the ward’s estate. On Jan. 21, the county court signed an order in both proceedings approving payment of $2,953 to the attorney. The county court found there were ample funds in the ward’s estate to pay this amount, that “payment of same would be in the best interests of this estate” and ordered the bank as temporary guardian to pay the attorney the appropriate sum. Bayne filed a notice of appeal for this order and guardianship and probate proceedings were then transferred to the same court: the county court at law. Later that same month, the bank applied in both proceedings for authority to pay another attorney more that $6,000 in fees or else to have Bayne directed to do it. In a March 16 order, the county court signed an order in both proceedings requiring Bayne as representative of the decedent’s estate to re-transfer back to the bank $20,000 of the money the bank previously transferred as guardian to Bayne as independent executor. The court also signed an order in both proceedings for the bank as guardian “and/or” Bayne as independent executor to pay the second attorney the $6,191 in fees “out of the funds belonging to the Estate of Eva Manning Bayne.” Bayne appeals. HOLDING:Affirmed in part; reversed and remanded in part. Bayne first argues the Jan. 21 order granting the bank’s application, filed that same day to pay the first attorney $2,953, is void because Bayne did not receive notice of the application before the order was signed. He had no opportunity to be heard, and he had a right to a jury trial on the issue, he continues. The court finds that nothing in the statutes governing guardianship requires notice. Bayne could have requested that he be notified, but he did not ever file such a request. Accordingly, he was not entitled to notice of the application to pay the first attorney. The court adds that to the extent Bayne asserts he could not contest the proceeding without notice, the court reiterates that he had no right to notice in the first place, unless he filed a request for notice under Probate Code 632(j). Bayne next argues that the Jan. 21 award is void because the ward was deceased, an independent executor of her estate had been appointed, and the bank had not applied to the independent executor for payment of the claim as required by the Probate Code. The court points out, however, that the ward’s estate did not cease to exist at her death. Finally, he argues the application did not follow the correct claims procedures of Probate Code Subpart G. The court notes that Bayne does not specifically cite any of the requirements listed in that section, and he did not file any objections about this section with the county clerk. The court next reviews the March 16 transfer order, which Bayne argues the county court lacked authority to issue. The court agrees with this argument, noting that none of the code provisions setting out the specific actions a court may take when there’s an independent executor authorize an order to “re-transfer” or “pay funds from the Deceased’s estate to the Ward’s estate.” As for the March 16 order to pay attorneys’ fees, neither the bank nor the attorney presented a claim to Bayne as independent executor, and neither brought suit against Bayne as independent executor. The court’s order requiring Bayne to pay the attorney’s fees constitutes an unwarranted intrusion into the independent administration of the estate. It was not an abuse of discretion for the court to order the bank to pay the attorneys’ fees, as the bank still retained authority as temporary guardian. Even though Bayne was named his mother’s “permanent guardian,” he really wasn’t because the bank still had primary responsibility for managing the ward’s estate, the court concludes. Disagreeing with a 13th Court of Appeals decision that held otherwise, the court rules that guardianship may be kept open even after the death of the ward. OPINION:Mazzant, J.; Bridges, O’Neill and Mazzant, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.