What filing fees applied to an ancillary probate action and later instruments filed in that action?
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This page answers the general question as of 1984. Ezel answers yours: what it means for your facts, under current Texas law, with citations.
Texas AG Opinion JM-168: Ancillary Probate Filing Fees
Plain-English summary
As issued in 1984, JM-168 concluded that an independent suit incident to an estate required a $25 filing fee as an adverse action or contest in probate court.
"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 1B(1)(c), which provides such a fee for every 'adverse action or contest,' excluding claims against estates."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0168.pdf
JM-168 also said later instruments filed after approval of the inventory and appraisement or filing of the tax receipt incurred per-page fees. JM-346 overruled that portion in 1985.
"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."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0168.pdf
Subsequent treatment
The official JM-168 landing page identifies the opinion as overruled in part by JM-346.
"Overruled in part by JM-346 (1985)"
Source: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0168
JM-346 retained the initial $25 fee charged to the party initiating an adverse action or contest, but held that no additional fee was authorized for pleadings or legal instruments in adverse and ancillary probate actions.
"We now conclude that, other than the initial $25.00 fee, no fees are authorized for the filing of pleadings and legal instruments in adverse and ancillary actions in the probate courts."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0346.pdf"To the extent that Attorney General Opinion JM-168 conflicts with this conclusion, it is overruled."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0346.pdf
Currency note
This opinion was issued in 1984 and overruled in part in 1985. Subsequent statutory amendments, court decisions, or later AG opinions may have further changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Common questions
What did JM-168 treat as a matter incident to an estate?
It cited Probate Code section 5A's inclusion of will probate, letters testamentary, heirship, estate claims, title questions, and settlement of wards' and decedents' estates.
"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."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0168.pdf
What was the original per-page rule?
JM-168 read article 3930(b) to impose $3 for the first page and $2 for each later page of an instrument filed in an open probate docket after the statutory milestone.
"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."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0168.pdf
Why did JM-346 reject the additional fees?
It distinguished ordinary probate services from adverse or ancillary actions and concluded that paragraph B(1)(c), rather than the open-docket per-page provision, governed those actions.
"Hence, we conclude that it is the intention of the legislature that it is paragraph B(1)(c), not paragraph B(1)(b), that applies to the adverse actions about which you inquire."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0346.pdf
JM-346 also applied the rule that fees must be expressly fixed by law and cannot be implied.
"It has long been established that unless a fee is provided by law for an official service required to be performed and the amount is fixed by law, a fee may not be charged. Furthermore, fee statutes are strictly construed, and fees are not permitted by implication."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0346.pdf
What was left of JM-168 after JM-346?
The initial $25 fee for the party starting an adverse action or contest remained, but the later opinion rejected additional filing fees for pleadings and instruments in that action.
"County clerks are authorized to charge an initial fee of $25.00 to be paid by the party initiating an adverse action or contest in a probate court. An additional fee is not authorized for the filing of pleadings and legal instruments by the defendants in adverse actions in a probate court."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0346.pdf
Background and statutory framework
Article 3930(b) controlled county-clerk fees on civil and probate court dockets.
"The fees which county clerks may impose for filings in the civil court dockets and in the probate court dockets are controlled by article 3930(b), V.T.C.S."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0168.pdf
Section 5(d) of the Probate Code allowed courts with original probate jurisdiction to determine matters incident to an estate.
"Section 5(d) of the Probate Code permits courts which exercise original probate jurisdiction to determine matters incident to an estate."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0168.pdf
Original holding
"Ancillary probate actions which are incident to an estate must pay a filing fee of $25.00."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0168.pdf
Source
- Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0168
- Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0168.pdf
- Subsequent treatment PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0346.pdf
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.
The Attorney General of Texas
JIM MATTOX
Attorney General
June 18, 1984
Honorable Henry Wade
Criminal District Attorney
Dallas County
Services Building
Dallas, Texas 75202
Opinion No. JM-168
Re: Filing fees for suits ancillary to a probate matter
Dear Mr. Wade:
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 initial filing and any supplemental instruments which may be filed after the filing of an order approving the "inventory and appraisements" or after the filing of the inheritance or estate tax receipt, whichever occurs first.
The fees which county clerks may impose for filings in the civil 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. Id. §1B(1)(a).
The statute also specifies the fee to be collected for filing and recording instruments in an open probate docket, after the inventory and appraisement or inheritance/estate tax receipt has been filed, a fee of $3.00 for the first page and $2.00 for subsequent pages. Id. §1B(1)(b)(i). The filing fee for an adverse action or contest in a probate court cause or docket is $25.00. Id. §1B(1)(c).
You contend that an initial filing fee of $25.00 should be collected for matters filed under sections 5 and 5A of the Probate Code, but that additional instruments must be filed without charge.
Section 5(d) of the Probate Code permits courts which exercise original probate jurisdiction to determine matters incident 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, e.g., Klein and Associates v. Klein, 637 S.W.2d 507 (Tex. Civ. App.—Eastland 1982, no writ) (suit by physician against wife of deceased 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.2d 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 1B(1)(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), §1B(1)(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 an estate must pay a filing fee of $25.00.
Very truly yours,
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
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