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June 27, 2012

In re Estate of Wong (2012) 207 Cal.App.4th 366

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The First District holds an attorney is entitled to attorney fees under California Probate Code § 10810 despite the lack of a written fee agreement.

Donna Wong retained Peter Bresler to represent her in the trust administration and probate of her late husband’s estate.  The parties did not execute a written contract.  When Wong became dissatisfied with Bresler’s work, she terminated his employment.

Wong argued Bresler was not entitled to fees because he failed to secure a written agreement.  Bresler filed a petition for apportionment of attorney fees pursuant to California Probate Code § 10810 et.  seq.  requesting 75% of the statutory attorney fees plus extraordinary fees.

The trial court awarded Bresler statutory fees, but denied his request for extraordinary fees.  The court denied Wong’s motion to vacate because fees in probate matters are not based on contract but are statutory.  Probate Code § 10810 states the attorney for the personal representative “shall receive compensation.”

On appeal Wong argued, in part, that Bresler was not entitled to fees because he failed to obtain a written fee agreement under Business & Professions Code § 6148.

Business & Professions Code § 6148 requires a written agreement only where the potential “expense to a client” is likely to exceed $1,000.  Attorney compensation for services rendered to a personal representative is not paid by the client but by the estate; there is no client expense triggering § 6148.

Probate Code § 10811 governs payment for extraordinary services and explicitly requires a written agreement pursuant to Business & Professions Code § 6147, a provision that imposes requirements comparable to § 6148.  By contrast, Probate Code § 10810, governing compensation for ordinary services, does not require or authorize written fee agreements.  Section 10810 is not contractual but calculates ordinary fees on a set formula.  An attorney is precluded from negotiating a higher rate.

Comment: Attorneys are entitled to statutory fees for ordinary probate services without a written retainer agreement.  However, extraordinary fees do require a written agreement, and it is always a better practice to obtain one.

 

 

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