Because Contingency Related to Work for Beneficiaries Apart from Estate Benefits, No Compliance Necessary With Probate Code Court Approval Requirements.
Okay, readers, here is an interesting cross-over case involving probate, retainer agreements, and contingency awards. The case is Sare v. Shad, Case No. C069573 (3d Dist. July 31, 2013) (unpublished).
In this one, an attorney agreed to represent two beneficiary sisters in matters relating to the conservatorship and eventual probate of an estate belonging to their half brother. In essence, sisters and attorney agreed that attorney was entitled to a third of any amount recovered from half brother’s estate. Unfortunately, he died, but delegated the work to another attorney which eventually garnered almost $823,000 for the benefit of sisters, a benefit payable from half brother’s estate.
The trial court found decedent attorney was entitled to his third contingency “cut” despite the fact he died.
The appellate court agreed. The “saving grace”--and an important drafting retainer point for contingency attorneys in any context (but especially where conservatorship/probate issues are present)-- is to include a retainer clause that allowed the (prior) deceased attorney to delegate work to other attorneys. That clause was present in this controversy, justifying the fee award in the eyes of both the trial and appellate courts.
Sisters also argued that the contingency fee was not recoverable because the contingency agreement had not been pre-approved by the probate court under Probate Code sections 2644 and 10811(c). This was not found persuasive because these provisions only applied to a fee agreement made for the advantage of half brother’s estate; here, the agreement was for the benefit of sisters so that they might become or remain as estate beneficiaries. No compliance was necessary with these Probate Code provisions.