chapter 15 - fees of attorneys and fiduciaries

15.1 Attorneys' Fees in Cases Involving Claims of Minors, Insane or Incompetent Persons

Counsel fees in excess of the following schedule ordinarily will not be considered reasonable in actions compromised under §372 of the Code of Civil Procedure or §§3600-3603 of the Probate Code;

a) Recovery more than two weeks prior to trial date first assigned case: 25% of the net amount received.

b) Recovery less than two weeks prior to trial date first assigned case or during trial: 33 1/3% of net amount recovered.

c) Recovery after filing brief on appeal or after affirmance: 40% of net amount recovered. (eff. 6/30/91)

In computing fees the court will require parents claiming reimbursement for medical expenses, etc., to pay their proportionate share of counsel fees except in cases of hardship. Reasonable costs incurred or paid by counsel that are itemized and accompanied by appropriate vouchers, or other supporting evidence, will be allowed excepting they shall not be included in the amount of the recovery on which fees are computed.

15.2 Attorneys' Fees in Guardianship and Conservatorship Proceedings

Attorneys for guardians and conservators are compensated according to the work actually performed. The size of the estate corpus and the responsibility assumed by the attorney are only two of the factors considered in arriving at the value of the services. Application for attorney's fees must be accompanied by a complete statement of the facts upon which the application is based, including a detailed statement of the amount of time devoted to each component of the services, and must specifiy the amount requested for each item of service, not merely reasonable fees. (eff. 6/30/91)

15.3 Attorneys' Fees and Representatives' Fees for Extraordiary Services in Probate Cases

a) In evaluating the justification for an award of fees for extraordinary services of an attorney or representative, the court will take into consideration the statutory fee and the extent to which it constitutes adequate compensation for all of the services rendered by the attorney or representative.

b) Subject to the principle stated in the foregoing paragraph a), compensation for extraordinary services will be considered in the following situations:

1) Litigation on behalf of the estate.

2) Operating or selling a business.

3) Sales of estate property.

4) Performance of any act resulting in extraordinaty benefit to the estate or requiring an extraordinary expenditure of time or display of competence.

c) Application for fees for extraordinary services will not be considered unless the title of the petition and the notice of hearing include a reference to the request. The prayer shall set forth the amount of the request.

d) An application for compensation for extraordinary services shall specify, with respect to such services:

1) The date rendered.

2) Nature of services rendered, in detail.

3) Hours spent on ordinary services.

4) Hours spent on extraordinary services.

5) Hourly rate.

6) Total amount requested.

e) Ordinarily, compensation for extraordinary services will not be allowed or paid before the final accounting has been approved by the court. (eff. 6/30/91)

15.4 Fees of Guardians and Conservators

Among factors to be considered in determining the compensation allowable to guardians and conservators are (1) the gross value and income of the estate, (2) the success or failure of administration of the guardian or conservator, (3) any unusual skill or experience which the guardian or conservator in question may have brought to his work, (4) the fidelity or disloyalty displayed by the guardian or conservator, (5) the amount of risk and responsibility assumed by the guardian or conservator in carrying out the duties, (7) the custom in the community as to charges exacted by trust companies and banks, (8) the character of the work done in the course of administration, whether routine or involving skill and judgment, and (9) the value to the ward or conservatee of the services of the guardian or conservator. (See Estate of Nazro (1971) 15 Cal.App.3d 218). (eff. 6/30/91)

15.5 Fees and Commissions Must be Fixed by Court Prior to Payment

There is no authority for payment of any fees or commissions in decedent's estates, guardianships or conservatorships in advance of a court order authorizing the same. The recipient of any unauthorized payment will be surcharged interest to the date of an order authorizing such payment, unless in the case of decedent's estates, the written consent of the residuary beneficiaries is filed with the court and the amounts paid are reasonable and proper. (eff. 6/30/91)