Probate: Probate Court’s Apportionment Of Ordinary Probate Attorney’s Fees Under Probate Code Section 10814 Was No Abuse Of Discretion

Lower Court Did Not Err In Failing To Set An Evidentiary Hearing, Because He Considered Relevant Documents In The File As Far As Fee Apportionment.

            Two Probate Code sections figures prominently in the resolution of the next case, Estate of Webb, Case No. A146787 (1^st Dist., Div. 1 Aug. 29, 2017) (unpublished), which involved two probate attorneys rendering “ordinary services” to a probate estate where an apportionment was required for work by two attorneys to a probate estate representative.

            Probate Code section 10814 allows the probate court discretion in compensating multiple attorneys for a probate estate personal representative “according to the services actually rendered by each attorney or as agreed to by the attorneys.”  Probate Code section 1022 allows a probate court to consider affidavits or verified petitions as evidence in uncontested matters, although they cannot be considered in contested matters.

            In this one, two attorneys vied on how $8,191 in ordinary services should be allocated given they both provided services to the probate estate personal representative.

The second attorney wanted an 80/20 split, while the first attorney wanted a 50/50 split.  The probate court, after deciding not to consider affidavits because the matter was contested, did consider all other documents and determined that 68% should go to second attorney and 32% to first attorney.  First attorney appealed, to no avail.

            The primary challenge rejected on appeal was that an evidentiary hearing had to be held in the context of a contested hearing on fee apportionment.  Both the lower and appellate courts did appreciate and give precedence to section 1022, with the probate court not entertaining the challenged affidavits but appropriately crediting past documents filed in uncontested hearings.  Given this sequence of events, the fee apportionment below was no abuse of the discretion.  Part of the problem was that the first objecting attorney failed to present an adequate record, but the appellate court believed there was no plain error and that no different outcome from a prejudice standpoint.