By: Brian Ramsey, Esq.

There is one question every probate or trust litigant asks at some point during their case: “Does the other side have to pay my attorney’s fees?”

From petitioner’s side the question often goes something like this: “My [fill in the name of ne’er do well family member here] completely took advantage of my parents, I want to sue! But since [evil family member] is clearly in the wrong, unreasonable, and is leaving me no other choice but to file a lawsuit, shouldn’t they have to pay my attorney’s fees?”

And from respondent’s side: “I didn’t do anything wrong! [Fill in name of ne’er do well family member here] is out to get me, this case is clearly bogus, and they are just trying to harass me, because they are ticked off about things that happened decades ago. Shouldn’t they have to pay my attorney’s fees when I win?”

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.)

A brief digression here: “fees” are different from “costs.” “Fees” are the monies paid to an attorney for prosecuting or defending the case. “Costs” are monies that are paid out of pocket during the litigation for other services, usually outside vendors. These typically include Court filing fees, fees for service of process, and court reporter fees for taking depositions of witnesses, or during trial. Generally, the prevailing party is entitled to such legal “costs.” (See California Code of Civil Procedure 1032, et seq.) The recovery of legal costs in itself is a complex issue which merits a separate article, and is not discussed in detail here.

Like any rule, there are a ton of exceptions. Though generally not recoverable, the law provides that the responsibility for attorney’s fees may be shifted from one party to another if authorized by statute or provided for in a contract. In the probate courts, there are several such statutes. The clever attorney should know and be prepared to utilize  these exceptions at every phase of the litigation. If there is a viable theory for recovering attorney’s fees, that should be presented in the initial pleading, whether it be a petition or objections to a petition. It should be brought up in settlement negotiations to create pressure and leverage, and should certainly be asked for either at trial or after trial in a timely post-trial motion.

Here are the notable statutes that provide for attorney’s fees in the context of probate litigation. This blog post will be a part of a 6 part series. In the next blog posts I will provide notable statutes that provide for attorney’s fees in trust, guardianship, elder abuse and non-probate / non-trust litigation. Note that some of the statues fall under multiple categories. (The following are the author’s explanation/interpretation of the various statues, and should not be construed as legal advice, or as a substitute for actually reading the statute.)

Probate Cases California Probate Code 859: Attorney’s fees “may” be awarded if a court finds that a person has in “bad faith” wrongfully taken, concealed, or disposed of property belonging to a conservatee, a minor, an elder, a dependent adult, a trust, or the estate of a decedent, or has taken, concealed, or disposed of the property by the use of undue influence. “Bad faith” is not given a clear definition in the Probate Code, but it essentially means an  intentional dishonest act. Contrast this with “good faith” where folks are genuinely doing what they think is right, even if it later turns out to be wrong. California Probate Code 11003: A person appointed as a personal representative must file an accounting with the court. If a person contests such an accounting without “reasonable cause” and in “bad faith,” the court “may” award attorney’s fees to the personal representative. If awarded, those attorney’s fees will be deducted from the contestant’s share of the estate. If the person’s share is not large enough to satisfy the award, the person will be personally liable for the difference. AND If the person filing the accounting (the personal representative) opposes a contest to the accounting without “reasonable cause” or in “bad faith,” the court “may” award attorney’s fees to the contestant. If awarded, the fees go against whatever compensation the personal representative is entitled to for their role as personal representative. If the personal representative’s compensation is not large enough to satisfy the award, the personal representative will be personally liable for the difference. California Probate Code 8906(e): In probate cases, there must be an appraisal done of the estate property. That appraisal is made by the personal representative, probate referee or independent expert. (See Probate Code 8900, et seq.) That appraisal can be contested. If the objection was made without “reasonable cause” or without “good faith,” the court “may” award attorney’s fees against the contestant. California Probate Code 8804(c): If the personal representative refuses or “negligently” fails to file an inventory and appraisal within the appropriate time, a person can petition to force the personal representative to do so, or even to have the personal representative removed. The court “may” award attorney’s fees to the petitioner. California Probate Code 9354(c): In probate cases, folks who think the decedent owed them money (creditors) can file creditor’s claims. The personal representative can either accept or reject these claims (the subject of creditor’s claims could be an entire article unto itself). If rejected, the creditor can file an action in court on that rejected claim. If the court determines that the prosecution or defense of such an action was “unreasonable,” the court “shall” award attorney’s fees to the prevailing party. California Probate Code 9614(c): A person who thinks the personal representative is doing a bad job may bring a petition to suspend the personal representative’s powers. If the court determines that such a petition was brought “unreasonably” and for “the purpose of hindering the personal representative in his duties,” the court “may” award attorney’s fees against the petitioner. California Probate Code 8872(c): A personal representative of the estate can petition the court to compel a person into court, or to answer written interrogatories, concerning allegations that the person has wrongfully taken property from an estate. (See Probate Code 8870.) If it appears that the allegations of the petition are not true, the person’s  reasonable attorney’s fee “shall” be awarded against the petitioner, or allowed out of the estate, in the discretion of the court. California Probate Code 21380(d): Certain transfers in a will or trust are presumed to be the product of fraud or undue influence, including transfers to the person who drafted the instrument, and care custodians. If such a person is unsuccessful in rebutting that presumption, that person “shall” have to pay the petitioner’s attorney’s fees.

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.