. . 

E ATTORNEY GENERAI. 

OF TEXAS 

September 7, 1961 

Honorable Robert S. Calvert Opinion No. WW-1134 

Comptroller of Public Accounts 

Capitol Station Re: Deductibility for inheriAustin, Texas tance tax purposes of 

administration expenses 

incurred in connection 

with the administration 

of the entire general 

Dear Mr. Calvert: community estate. 

You have requested, that we advise you as to whether fees 

of the executor, administrator, accountant, appraiser and probate 

court costs should be allowed in full as a deduction for inheritance tax purposes upon the death of the first spouse in those 

cases in which there is an administration of all of the general 

community estate. 

All of the fees enumerated by you and the probate court 

costs may properly ‘be referred to as expenses of administration 

and, except in certain circumstances which we will specifically 

note, the same rules as to deductibility for inheritance tax purposes will apply. 

In many instances, with certain exceptions not pertinent 

to your question, lthe entire community estate, and net merely 

the decedent’s interest therein, is subject to administration 

upon the death of either member of the community. 14-B Tex.Jur. 

185, Decedent’s Estates, Sec. 1126. It ,so happens that the cases 

we will hereafter discuss were concerned with fact situations in 

which thehusband predeceased the wife; however, the conclusions 

we draw from these cases would be same if the wife dies first 

and if the entire community estate is subjected to administration 

at her death. 

It has been held that the community oronertv 1~s generally 

regarded as belonging to the estate of the deceased husband, subject 

to administration by his executor and tne payment of his or the 

community debts. Therefore, there can be nq, dismemberment of the 

::, 

’ For a discussion of various types of administration under the 

Probate Code see "Community Property in the Administration of 

Estates", 33 T.L.R. 1012 and "Probate Code Changes in Administration of Community Property", 34 T.L.R. 1012. 
Honorable Robert S. Calvert, Page 2 Opinion No. WW-1134 

estate for administration purposes. Lovejoy v. Cockrell, 63 S.W.2d 

1009 (Comm.App., 1933); Tracy v. Lion Oil Co., 312 S.W.2d 562, 

(Civ.App. 1958, no writ history); Goggans v. Simmons, 319 S.W.2d 

442 (Civ.App. 1959, error ref., n.r.e.). 

Under Article 3630, V.C.S., as that article stood prior to 

the adoption of the Probate Code, it was provided that until partition of community property is applied for by the surviving spouse 

and made, "the executor or administrator of the deceased shall recover possession of all such common property and hold the same in 

trust2for the benefit of the creditors and others entitled thereto." 

It has been stated that the fact that the community property is subject to the debts of the deceased husband and to 

administration by his executor may be regarded as an elementary 

principle under the laws of Texas. Nesbitt v. First National Bank 

of San Angelo, 108 S.W.2d 318, 320 (Civ.App., 1937, no writ history). 

See also Speer's Law of Marital Rights in Texas, 3rd Ed. 820, Sec. 

657. Under the decision in Jenkins v. First National Bank of 

Coleman, 101 S.W.2d 845 (Civ.App. 1937, no writ history), the 

rule would be applicable not only to estates administered under 

the jurisdiction of probate courts but also to estates administered 

by independent executors. 

In view of these principles, it has been held that where 

the entire community estate has been subjected to administration 

by the executor of a deceased husband, only one-half of the administration expenses was attributable to the decedent's portion of 

the estate and that, therefore, only one-half could be deducted in 

computing the Federal estate tax. Lang's Estate v. Commissioner 

of Internal Revenue, 97 F.2d 867, 872 (C.C.A. gth, 1938); Estate 

of Oscar Leavy, 42 B.T.A. 991 (1940); Schumacher v. Commissioner, 

8 T.Ct. 453 (1947). In the case last cited, only one-half of the 

attorney's fees paid for assistance in probate work were allowed 

as a deduction in determining the estate tax on his portion of 

the community property. Also allowed as a deduction were one-half 

of the payments for accounting services and one-half of the executor's fees. 

We are in accord with the results reached in these decisions 

and think them applicable in determining allowable deductions for 

Texas inheritance taxes. However, in certain instances, even 

though the entire community estate is subject to administration, 

with the result that only one-half of the general expenses of the 

2 Article 3630 was omitted in the Probate Code, but partition may 

still be had. See 33 T.L.R. 1012, 1025. 
. . . 

Honorable Robert S. Calvert, Page 3 

administration are deductible from the decedent's one-half of the 

community property for inheritance tax purposes, where an attorney's 

fee is paid by the estate for services in connection with Federal 

and State3 death taxes, we are of the opinion that such amount 

Opinion No. W-1134 

should be deductible in full since it is attributable entirely to 

the decedent's share of the community property. This was the result reached in Lang's Estate, supra. 

Our holding on this point as to the ded,Actibility of only onehalf of the expenses of administration is limited to those instances 

in which the administration of both shares was necessary for the 

settlement of the affairs of the entire community, as for example 

where it was necessary to determine the amounts of community debts 

and liquidate assets to pay them. If the administration of the 

community is totally unnecessary except for the purpose of facilitating the computation and payment of Federal and State death 

taxes due by the estate of the decedent, we are of the opinion that 

the entire expenses of the administration should be allowed as a 

deduction. Succession of Helis, 75 So.2d 221 (La.Sup., 19%). _ 

In those instances in which the decedent possessed separate 

property as well as community property, the expenses of administration should be apportioned between the separate and community property in accordance with the value of the decedent's estate in 

computing inheritance taxes. Re Coffee's Estate, 120 P.2d 661 

(Cal.Sup. 1.941). The Goggans case, supra, is a Texas case which 

has reached the same result as to apportioning administration 

expenses. We quote the following excerpt from page 446: 

"The other points relate to charging 

the community estate with the funeral 

expenses of the testator, and to charging 

the expenses of administration proportionately to the separate estate of the 

testator and community estate. 

"It seems to be the law that funeral 

expenses of a deceased spouse in a reasonable amount are primarily chargeable to 

the community estate. Goldberg v. Zellner, 

Tex.Com.App., 235 S.W. 870; Norwood v. 

Farmers & Merchants Nat. Bank of Abilene, 

Tex.Civ.App., 145 S.W.2d 1100, error 

refused; Richardson v. McCloskey, Tex. 

Com.App., 276 S.W. 680; Hacker v. Piper, 

Tex.Civ.App., 2 S.W.2d 997. 

3 Article 14.10, Ch. 14, Title 122A, 20-A Tax.-Gen , V.A.T.S.; expressly provides that "attorney's fees and Court costs accruing 

in connection with the assessing and collecting of taxes provided 

for under this chapter. . ." shall be deductible. 
- -. 

Honorable Robert S. Calvert, Page 4 Opinion No. WW-1134 

"Nor do we perceive any error in 

the action of the court in charging 

expenses of administration proportionately to the separate estate of 

the deceased and the community estate. Appellant inveighs against 

the practice of administering on 

the estates of living persons and 

charging them with administration 

expenses. The decisions, however, 

seem to authorize what was done in 

this case. 14-B Tex.Jur., p. 185, 

sec. 11~6; Huth v. Huth, Tex.Civ. 

APP., 187 S.W.523; Norwood v. 

Farmers & Merchants Nat. Bank of 

Abilene, supra; Lovejoy v. Cockrell, 

Tex.Com.App., 63 S.W.2d 1009." 

Article 14.10, supra, allows the full deduction of funeral 

expenses. Other than this, the above stated rules of apportioning 

expenses of administration would be determiniative of the amount 

of allowable deductions for inheritance tax purposes. 

SUMMARY 

Where the entire community estate is 

subjected to administration, only one-half 

of the general administration expenses are 

attributable to the decedent's portion of 

the estate. Therefore only one-half of 

such expenses are deductible for inheritance tax purposes. However, if administration of the community is unnecessary 

except for the purpose of facilitating 

the computation and payment of Federal 

and State death taxes, the entire expenses of administration are deductible. 

Attorney's fee paid by the estate for 

services solely in connection with 

Federal and State taxes are deductible 

in full. If the decedent's estate is 

composed of both separate and community 

property, the expenses of administration 

should be apportioned between the decedent's separate and community property 
Honorable Robert S. Calvert, Page 5 Opinion No. WW-1134 

in accordance with the value thereof 

and the allowable deduction for inheritance tax purposes computed In accordance 

with such apportionment. a 

Very truly yours, 

WILL WILSON 

Attorney General of Texas 

MMcGP:jp 

APPROVED: 

OPINION COMMITTEE: 

W. V. Geppert, Chairman 

W. E. Allen 

Gordon C. Cass 

Robert T. Lewis 

F. C. Jack Goodman 

REVIEWED FOR THE ATTORNEY GENERAL 

By: Howard W. Mays