First District, Division 1 Makes the Point for Specific Substantiation in Recent Unpublished Decision.
Probate law requires more specific substantiation to justify trust payments of attorney’s fees than is required in civil litigation—although our recent posts have still lobbied that time sheets and detailed breakdowns are advisable no matter what the context. The need for greater particularity in probate proceedings is shown in our next case, Krivy v. Krivy, Case No. A121561 (1st Dist., Div. 1 Apr. 28, 2009) (unpublished).
There, a trust beneficiary challenged the specificity of fee substantiation submitted in support of substantial fee requests as against trust property. The trial court overruled beneficiary’s objections, but they hit a resonant accord on appeal.
Had beneficiary not objected, trustee’s accounting under oath with respect to attorney fees constituted adequate proof of their authenticity and propriety. (Estate of Miller, 259 Cal.App.2d 536, 549 (1968).) However, once the beneficiary questioned the payments, the burden shifted to trustee to justify them. (Id. at 550; Conservatorship of Lefkowitz, 50 Cal.App.4th 1310, 1316 n. 4 (1996).) Although no submission of attorney’s bills was required, a petition for approval of payment of fees should “describe in detail the services provided, including dates, should specify the reason for the work, the time spent, the hourly rate of each person whose time was charged to the matter, the results achieved, and the benefit to the trust.” (1 Cal. Trust Administration, sec. 9.44, p. 506 (Cont.Ed. Bar 2d ed. 2001 rev. Feb. 2009.) Because this detail was missing, the matter was reversed and remanded for a hearing on the propriety of paying the requested fees.