August 7, 2014

Probate Fees - Apportionment

Occasionally a probate client becomes disenchanted with his or her attorney, e.g. lack of responsiveness with the client or failure to file documents in a timely manner, and decides to switch attorneys mid-stream. A simple substitution of attorney form is all that is required to replace an attorney. At that point, the client can either proceed without an attorney, in propria persona as it is known, or they can hire substitute counsel. Typically the client will hire a new attorney given probate's complexities. If they hire new counsel who completes the probate process, a natural dilemma arises. How is the attorney fee apportioned between the old and new attorney?

The California Probate Code has a specific law that addresses the issue of apportionment. Probate Code § 10814 states "if there are two or more attorneys for the personal representative, the attorney’s compensation shall be apportioned among the attorneys by the court according to the services actually rendered by each attorney or as agreed to by the attorneys." Consequently, a probate judge has discretion to apportion the fee between the probate attorneys. Estate of McManus (1963) 214 Cal.App.2d 390, 400.

The logical follow-up question is, how do you apportion the services rendered between the probate attorneys? This is most easily achieved through declarations stating each attorney's hourly rate and how many hours each expended on the case. Since the ordinary attorney fee for a probate case is set by statute, e.g. a $11,000 fee for a $400,000 estate, the apportionment is prone to approximations. For instance, the old attorney bills at $300 an hour and expends 30 hours on the case, a $9,000 fee. Conversely, the new attorney bills at $250 an hour and expends 20 hours on the case, a $5,000 fee. The probate judge could then decide to reasonably apportion the fee amongst the old and new probate attorneys. 

From experience, it is much easier to open probate than to close probate. In order to close probate, a petition needs to be filed on pleading paper. Whereas to open probate, such usually only requires the completion of various judicial council forms (these are fill-in templates). Hence, the attorney that completes probate would normally have more work to complete than the attorney that begins it. This increased workload naturally results in a higher fee. Thus, one would expect the attorney that concludes probate to have the larger fee request.  

Finally, there is only one fee given for an ordinary attorney's fee. Cal Rules of Ct 7.704(a). Thus, even if multiple attorneys work on the case, the ordinary attorney fee is not multiplied by the number of attorneys who worked on it. Thereby a $11,000 ordinary attorney fee is not doubled because two or more attorneys worked on the case. The $11,000 ordinary attorney fee is simply apportioned amongst the attorneys.