Court of Appeal Sustains Award Of Extraordinary Fees To Estate Administrator’s Attorney Under Probate Code Section 10811

Appellate Panel Rejects Beneficiaries’ Challenge Under Probate Code Section 11003 As Inapt.

            We would like to welcome probate practitioners to our blog.  This is one of our inaugural posts on the discretion probate courts possess to award extraordinary fees to attorneys.  Given this discretion, we would surmise that few appeals are taken on these rulings, one way or the other.  Below is one of the few decisions we have seen in over four months of posting fee decisions in the probate area.

            In Estate of Lopez, Case No. B200549 (2d Dist., Div. 8 Sept. 4, 2008) (unpublished), a suspended estate administrator hired an attorney who helped him clarify accountings and avoid excessive surcharges.  Attorney then petitioned for extraordinary attorney’s fees of $14,772.30 for 62.9 hours of work over a four-month period. One of the estate beneficiaries challenged that the fees were unjust or unreasonable based on Probate Code section 11003(a), which provides that the probate court may award fees against the contestant or estate administrator after finding that an accounting contest was conducted without reasonable cause and in bad faith.  In reply, attorney argued that Probate Code section 10811 governed, which authorizes the probate court to award compensation out of the estate assets to the estate administrator’s attorney for conducting ordinary proceedings.

The probate court awarded the fees, as prayed, to the petitioning attorney.  Beneficiary appealed.

            The Second District, Division Eight affirmed.  In doing so, the appellate panel observed that section 10811 was the correct authorizing statute and that it gives the probate court considerable discretion in awarding extraordinary fees.  (Sec. 10811(a); Miller v. Campbell, Warburton, Fitzsimmons, Smith, Medel & Pastore, 162 Cal.App.4^th 1331, 1339 (2008).)  As further set forth in California Rules of Court, rule 7.703, “extraordinary fees” in this context include services for the defense of the personal representative’s account and litigation in support of an attorney’s petition for extraordinary compensation. 

            Appellant beneficiary challenged the award under the wrong section.  Section 10811 was the correct provision.  The provision cited by beneficiary—Probate Code section 11003 governs the personal liability of the contestant (here, the beneficiary) or the personal representative (here, the estate administrator) for the costs of litigating a frivolous accounting contest.  However, the petitioning attorney was seeking a fee award out of estate assets, not against beneficiary personally.  Section 10811 was the proper predicate statute, and the Court of Appeal found no abuse of discretion in awarding the fees to respondent attorney.