Wow, March 22 was a busy, busy day for attorney’s fees topics in both state and federal courts. Here come a lot of posts, starting with our category “Probate.”
Probate Code section 11704(b) at Issue in Estate of Bartsch, Case No. A126925 (1st Dist., Div. 1 Mar. 22, 2011) (certified for publication).
Here, the appellate court confronted whether an executor/heir (with 14% in a probate estate) was disqualified from receiving an award of attorney’s fees for ordinary/extraordinary services because he was not impartial and hence not “a party to assist the court” under Probate Code section 11704(b). After examining both the statute itself and legislative history, the Court of Appeal concluded that the designation of a representative as a “party” in the statute necessarily implied the right to advocate either for or against an heirship petition by another. The $19,774.96 fee award to executor’s attorney was proper.
Probate Code section 17211(b) Involved in Guest v. Frazier, Case No. B225938 (2d Dist., Div. 6 Mar. 22, 2011) (unpublished).
Probate Code section 17211(b) authorizes an award of attorney’s fees and litigation expenses in favor of a beneficiary who contests the trustee’s account if the trustee’s opposition to the contest was “without reasonable cause and in bad faith,” using malicious prosecution standards when determining these elements. (See Uzyel v. Kadisha, 188 Cal.App.4th 866, 926 (2010) [reviewed in our September 23, 2010 post].) In this instance, the trial court properly awarded successful beneficiary challenging a trustee’s actions $80,000 in attorney’s fees and $1,741 in costs, which was imposed as a surcharge on the family trust. The record showed that trustee acted in bad faith in refusing to distribute beneficiary’s share of the trust assets (with beneficiary being mentally/physically disabled), because the refusal was in retaliation for beneficiary’s exercise of his right to obtain relief from the courts, or in imprudently investing into junk bonds. Although section 17211(b) was silent on whether appellate fees were awardable to beneficiary, the Court of Appeal determined it was implied to be so in line with similar entitlements under other statutes.