Only One-Third in Extraordinary Compensation Granted to Attorney Under Probate Code Section 10811.
Attorney for personal estate representatives was only awarded $20,912.50 out of a requested $62,737.50 in extraordinary compensation under Probate Code section 10811(a), which allows for such an award “in an amount the court determines is just and reasonable.” Unhappy, he appealed in Estate of Jackson (Schneider v. Jackson), Case No. A124023 (1st Dist., Div. 5 Dec. 23, 2009) (unpublished).
He did not prevail on appeal. The lower court has broad discretion in determining whether to award extraordinary compensation and to fix the amount of compensation awarded. (Estate of Gilkison, 65 Cal.App.4th 1443, 1448 (1998).) The general factors looked at include the value of the estate, the nature and difficulty of the tasks performed and the time spent, the results achieved and whether these results benefited the estate as a whole (rather than simply furthering the interests of a particular distributee); plus, the court will evaluate these factors against whether statutory “ordinary” compensation under section 10811 will suffice. See Ross, Cal.Practice Guide: Probate (The Rutter Group 2008) ¶ 16:330, pp. 100-101. In this particular case, the appellate court found the probate court properly discounted the requested fees for attorney’s delay in resolving a partition action and in slowing the sale of certain property. Also, it was acceptable for the lower court to credit the opposition showing that the attorney spent too much time performing the services for which compensation was sought.
Attorney argued that a statement of decision was required, but the Court of Appeal rejected this contention. “[None] of the cases upon which [attorney] relies … supports his argument that a probate court must issue a statement of reasons when it awards extraordinary compensation pursuant to section 10811.” (Slip Opn., p. 7.)
Also, attorney just barely dodged appellate sanctions for bringing a frivolous appeal, with the appellate court calling the issue “close.”
Attorney Denied Compensation Altogether When Litigation Only Benefited Former Trustee Personally Rather Than the Trust.
In the next one, Harper v. Amov, Case No. E045982 (4th Dist., Div. 2 Dec. 23, 2009) (unpublished), a probate judge denied compensation in entirety to the attorney for a former trustee, who had requested fees and costs of $43,500. The former trustee had been removed for a blatant conflict of interest, and attorney had also initiated “no contest clause” litigation against a person who did not stand to benefit from the trust. Given this state of affairs, the Court of Appeal had no difficulty affirming the lower court’s decision, finding that the record supported the conclusion that the litigation/probate efforts of attorney had been advanced on behalf of the former trustee personally (rather than brought for the benefit of the trust).