ATTORNEY’S FEES IN AN ESTATE

January 19, 2011 § 2 Comments

Every administrator or executor is required by Uniform Chancery Court Rule (UCCR) 6.10 to have an attorney to represent him or her in connection with administration of the estate. 

The attorney’s fees of the administrator or executor are not the obligation of the estate, but are the personal obligation of the fiduciary, but they may be allowed by the court as part of the administration expenses.  Scott v. Hollingsworth, 487 So.2d 811, 813 (Miss. 1986).  In order to be properly allowed by the court as administration expense, the attorney’s fees must benefit the estate, and fees which do not benefit the estate are properly disallowed.  Estate of Collins v. Collins, 742 So.2d 147, 149 (Miss. App. 1999).     

In making his determination of an attorney fee award, the chancellor must weigh several factors:

“The factors which the chancery court considers in fixing the amount of reasonable compensation are varied.  Among those factors, however, are the following:  time, skill, the responsibility, the monetary value of the estate administered and its liquidity, the speedy disposition of the business, the services of the attorney, the practice of attorneys in that court and the charging of fees for similar services, the complexity of the issues, and the necessity of litigation concerning the estate business.”  Scott at 814.

I disallowed a claim of more than $20,000 for attorney’s fees in an estate where no action had been taken in 18 months after the qualification of the fiduciary, the fiduciary and not the attorneys had done most of the work, the attorneys were charging more than $350 an hour, the reasonable hourly rate in this district is $185, the estate was fairly simple and should have been closed in less than a year, and a substantial portion of the fees were attributable to the fiduciary resisting the sole beneficiary’s efforts to have him ousted for inaction.   

If you want to get paid for your services to the fiduciary, you had better become very familiar with UCCR 6.11 and 6.12. 

This judge will require that an itemized statement of services rendered by filed in the court file and, preferably, be attached as an exhibit signed and sworn by the fiduciary.  The old practice of filing a broad, general statement of services without showing the time expended, is no longer acceptable.  The purpose of an itemized statement is to disclose to all interested parties what services were rendered for the benefit of the estate, and to allow them an opportunity to be heard, pro or con.  The best practice in a final account is to attach the attorney fee statement as an exhibit to the petition to close so that all interested parties will have notice and opportunity to agree by joining in the petition or to contest it.      

If the petition for fees is based on recovery of damages for wrongful death, UCCR 6.12 imposes some specific and stringent requirements.  The fee allowed ” … will be fixed by the chancellor at such sum as will be reasonable compensation for the service rendered and expense incurred without being bound by any contract made with any unauthorized persons.”  Any agreement for a contingent fee must be approved in advance by the chancellor.  In other words, if you don not get your contract approved in advance, you will be working on a quantum meruit basis rather than on a contingency.

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