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Attorney’s Fees in Non-Probate / Non-Trust Situations

By: Brian Ramsey, Esq.

Fourth in our series regarding attorney’s fees and “Do I really Have to Pay for This?!?!? The general answer is “No!” The “American rule” is that each side has to bear their own attorney’s fees. (California Code of Civil Procedure §1021; In Re Bevelle’s Estate, (1947) 81 Cal.App.2d 720.)

However there are some exceptions. Exceptions for Non-Probate / Non-Trust Situations Include:

Non-Probate  / Non-Trust Situations

This section addresses miscellaneous situations in which no trust is involved, nor is there a probate action in court.

California Probate Code 5003: This section deals with non-probate transfers, which typically come in the form of “payable on death (POD)” or “transfer on death (TOD)” designations. These can be done on a variety of accounts, including bank accounts, brokerage accounts, and insurance policies. A beneficiary of such an account can simply fill out the required paperwork with the financial institution to get the assets from the account. However, Probate Code 5003(a)(2) provides that a beneficiary of such an account cannot simply take the assets if he has been served with notice that someone is making an adverse claim to that asset.

Probate Code 5003(e) provides for attorney’s fees if such a notice is given in “bad faith.”

California Probate Code 13604(b): If a person passes away while still working, his or her spouse may present an affidavit to the employer to collect any unpaid wages (see Probate Code 13601). If the employer refuses to pay, the spouse may bring an action in court to force payment. If the court ultimately finds that the employer acted “unreasonably” in failing to pay, the court “shall” award attorney’s fees to the surviving spouse.

California Probate Code 13105: If the gross value of a decedent’s estate is under $166,250, probate is not necessary. The assets can be obtained via a “small estate affidavit.” (See Probate Code 13100, et seq.) If the holder of the assets refuses to turn them over, the heir can file an action in court. If the court finds that the holder of assets acted “unreasonably” in withholding the assets, the court “shall” award reasonable attorney’s fees.

This also applies to a “sister state” personal representative. (See Probate Code 12572.)

California Probate Code 13541(d): Forty days after a person’s spouse passes away, the surviving spouse has the power to dispose of community real property. (See Probate Code 13540.) A surviving spouse does not have such power if a notice is recorded stating that another person claims an interest in that real property under a will. If a court eventually determines that such a notice was filed only for the purpose of “slandering title,” the court “shall” award reasonable attorney’s fees against the person who recorded the notice.

General Ways to Obtain Attorney’s Fees

California Code of Civil Procedure 128.5: A court may order a party, the party’s attorney, or both, to pay reasonable attorney’s fees incurred as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay.

“Actions or tactics” include, but are not limited to, the making or opposing of motions or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading. The mere filing of a complaint without service thereof on an opposing party does not constitute “actions or tactics” for purposes of this section.

“Frivolous” means totally and completely without merit or for the sole purpose of harassing an opposing party.

Malicious Prosecution: This is a separate lawsuit that is brought after the conclusion of an underlying lawsuit. To succeed in a malicious prosecution lawsuit, the plaintiff must show: (1) that the defendant was actively involved in bringing or continuing the lawsuit; (2) that the lawsuit ended in plaintiff’s favor; (3) that no reasonable person in defendant’s circumstances would have believed that there were reasonable grounds to bring the lawsuit against plaintiff; (4) that defendant acted primarily for a purpose other than succeeding on the merits of the claim; (5) that plaintiff was harmed; (6) and that defendant’s conduct was a substantial factor in causing plaintiff’s harm.

Most of these statutes contain words such as “may,” and “reasonable.” These equivocal words give judges wide discretion to decide whether to award such fees, and if so, in what amount. Judges can, and often do, award lower amounts than what was actually paid or incurred.  Judges have the luxury of examining what fees were incurred after the outcome is known – something the attorneys and parties cannot know for certain as they strategize and litigate the case. It is therefore important to have an attorney that not only knows that fee-shifting statutes are available but who can effectively and efficiently obtain the best overall outcome under the specific facts of your matter.

If you are wondering if you’re entitled to attorney’s fees or if someone has threatened to sue you and stated that you’ll have to pay for their attorney’s fees, we encourage you to contact us to see if we can help.

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