Probate Code, § 10814 Allows For Apportionment, But Prior Counsel Did Not Prove Why Allocation Was Warranted.
Probate Code section 10810 allows an attorney representing the executor of a probate estate to obtain compensation for ordinary services, calculated as a percentage of the estate. Section 10811 allows the attorney additional compensation for extraordinary services by the attorney in an amount determined to be just and reasonable by the probate court. In the case where there are two or more attorneys for the personal representative, the attorney’s compensation shall be apportioned by the court among the attorneys per the services actually rendered by each attorney or per an agreement between counsel. (Prob. Code, § 10814.)
No one doubted that these principles were in play in Powell v. Schneider, Case No. A132157 (1st Dist., Div. 5 Mar. 8, 2012) (unpublished). However, successor attorney was retained under an order that expressly stated that personal representative could not retain prior counsel based on a prior conflict of interest situation. Prior counsel was unhappy about the compensation awarded to successor counsel, and appealed.
He did not gain anything by the appeal.
After all, the record on appeal contained no evidence from which a court might apportion ordinary attorney’s fees between prior and successor counsel based on the work performed. Prior counsel had been paid for his prior work, and successor counsel was paid for his specific work, so no error was shown in the probate court’s award of compensation to successor counsel for that specific work on behalf of personal representative.