Hi, my name is John T. Anderson. Welcome to my blog! I have been practicing law in California since 1975 and have been the Chairman of the Estate Planning and Probate Section of the Long Beach Bar Association since the mid-1980s. I'm also certified by the State Bar of California Board of Legal Specialization as a specialist in Estate Planning, Trust and Probate Law. On this blog, you will find articles written by me regarding estate planning and probate in California. Many of these articles address recent changes in the law and summaries of the Long Beach Bar Association’s Estate Planning and Probate Section meetings. I hope that you find these articles helpful. If you would like more information about me or my law office, please visit my website at or contact my office at 562.424.8619.

Wednesday, April 20, 2011

Attorneys Fees in Contests

By John T. Anderson, Chairman
Certified Specialist in Estate Planning, Trust
and Probate Law by the State Bar of California,
Board of Legal Specialization                   

Attorneys Fees in Contests

Be sure to calendar our Long Beach Estate Planning, Trust, and Probate Law Section Brown Bag Lunch set for June 2, 2011.  We will be discussing Propositions 13 and 58.

For some time the apparent practice of many courts under Probate Code §11704 has been to reject requests for attorney’s fees in contests to the attorney representing an estate’s personal representative, who also is an heir/beneficiary.

In Estate of Hans Bartsch (03/22/2011) A126925 from San Francisco, the Appellate Court ruled in favor of the Executor/Respondent and affirmed an award of extraordinary fees to the personal representative’s legal counsel where the “personal representative or executor may participate ‘as a party to assist the court’ under Probate Code §11704(b).”  That section allows the personal representative to “file papers and otherwise participate in the proceeding as a party to assist the court.”

Decedent’s Will named the Respondent to be beneficiary of 14% of his estate and to serve as Executor.  The Will set forth that testator was not married and had no children, step-children, or foster children.  There were twenty beneficiaries.  There was no provision for objector.  There was a clause excluding all others, a no-contest clause, and a clause giving $1 only to a successful claimant or contestant.

Objector filed a “Petition to Determine Rights under §11700 et. seq.”  He claimed that he was decedent’s only child and was entitled to the entire estate under intestate succession.  He alleged that decedent and his mother had a relationship resulting in his birth; that a paternity action determined decedent was his father and required support payments; and that his father didn’t believe he was his son or he forgot him.

At the time of this proceeding regarding attorney’s fees and costs to the Executor, the underlying issues of objector’s petition have yet to be determined.

The Appellate Court first had to rule on whether or not Objector had standing to appeal.  The court was satisfied that, in light of the fact that if he prevails on his claim that he is a pretermitted heir he will be entitled to the estate, that he has the right to appeal the award of attorney’s fees and costs to the Executor.

Section11704 provides that, after Letters are first issued to a general personal representative, the personal representative or . . . may petition to determine who is entitled to distribution.
Objector contends that the code permits Respondent to participate only as a neutral party and not to advance his own interests.  Further, that an award of interim attorney’s fees and costs to Executor gave him unfair financial advantage.       

The appellate court found nothing in the language of the code to preclude the executor from assuming the entire defense of an heirship petition “where there are numerous beneficiaries with a direct financial stake in the matter.” 

So the facts in this case can be clearly distinguished from many other contest situations.  It is an heirship/distribution petition, and the Executor is but one of several persons with a financial stake.  The Executor is not the sole beneficiary whose interest is being contested.

Footnote #7 of the decision highlights the provision of the Will which specifically directed that the estate representative “repudiate claims against the distribution of the estate.”       

All of these factors taken together brought the Appellate Court to its conclusion supporting its decision to affirm.  The court emphasizes “in this case,” thus drawing attention to the specific facts and law in this case as opposed to establishing a general rule.

                John T. Anderson, Section Chair
                Certified Specialist in Probate, Trust and Estate Planning
                By the California State Bar Board of Legal Specialization

Copyright © 2011 by John T. Anderson
All articles by John T. Anderson may be copied for personal use, only. All articles or outlines from others may be used only with their personal authorization. Any approval is for personal use, only, and for non-commercial purposes.
File Location: C:\Users\John's LT\Documents\Work\Website\Articles for Website\Word Version of Articles From Lisa\2011.04.20  Attorneys Fees in Contest.docx