           --’         ,




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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
                                               -
                                                    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
                                                                         .   --.


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




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