Common Fund, Probate: Decedent’s Son By A Prior Relationship Successfully Defended A Will Contest, Creating A Common Fund From Which Attorney’s Fees Were Appropriately Paid By The Estate

Although Such Fees Should Usually Be Paid Forthwith, Probate Code Has Discretion To Defer Them For Payment Until Final Distributions Are Made.

            The common fund doctrine, which usually is at play in class action or probate cases, allows the person obtaining a benefit for a number of persons to be awarded attorney’s fees out of the fund created, based on the theory that the other persons should have to bear their fair share of fees rather than just the person who led to the creation of the fund. (Serrano v. Priest, 20 Cal.2d 25, 34-35 (1977); Northwest Energetic Services, LLC v. California Franchise Tax Bd., 159 Cal.App.4^th 841, 878 (2008).)

            In Estate of Trikha, Case No. G054909 (4^th Dist., Div. 3 Dec. 27, 2018) (unpublished), a son of decedent by a prior relationship successfully defended against a will contest so as to create a common fund for others to share. He, in turn, moved to recoup his attorney’s fees. The trial judge agreed that fees were warranted, awarding about $154,000 from the estate to son’s counsel of record. However, the judge deferred payment and determination of priority until the time of final distribution. Son appealed, claiming prompt payment of fees should have been ordered and the fees deemed to have priority.

            The 4/3 DCA, in an opinion authored by Acting Presiding Justice Aronson, affirmed the deferment order under the abuse of discretion standard. Although agreeing that payment of such fees normally should be prompt in nature, the panel could locate no case saying that the trial court must order prompt or immediate payment. Review was hampered by the lack of a reporter’s transcript of the hearing, such that deferment was within the discretion of the probate judge in this particular situation.