In the recent case of Colonial American Casualty and Surety Co. v. Scherer, — S.W.3d –, 2007 WL 135969 (2007), a Texas appellate court ruled that a surety issuing an administrator’s bond was not liable for attorney’s fees in excess of the stated penal amount on the face of the bond. In that case, the stated penal sum was $30,000.
This case has some significance to California because while the Texas appellate court was applying Texas law, and was interpreting the language of the specific bond, the court cited numerous California cases in reaching its decision.
But yet a California court would probably still use a somewhat different approach given that the Bond and Undertaking Law [Cal. Code of Civil Procedure § 995.010] establishes a regime for asserting claims against bonds given in a proceeding, which would include probate matters. No matter what the bond provides there are avenues for seeking counsel fees from a surety on a “proceeding bond” if the surety fails to honor a claim in a timely manner [see Cal. Code of Civil Procedure § 996.480].