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I am the executor of my mother's estate. The attorney says I do not have to
appear in court for closing of the estate, but I want to show up to document
his poor performance and get the judge to agree to lower the attorney fee.
Should I just negotiate a new fee by announcing that I might show up, or
should I address the court on my own at the hearing, or should I bring
another lawyer to the hearing, etc., etc.
-B
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I am the executor of my mother's estate. The attorney says I do not have
to
appear in court for closing of the estate, but I want to show up to
document
his poor performance and get the judge to agree to lower the attorney fee.
Should I just negotiate a new fee by announcing that I might show up, or
should I address the court on my own at the hearing, or should I bring
another lawyer to the hearing, etc., etc.
Please spell out more details about the fee arrangement and the attorney's
poor performance. How was the fee determined? What work was the attorney
supposed to do for this fee? What did he or she do or fail to do?
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On 18 Oct 2004, "B" <nospamblam@nc.rr.com> wrote:
I am the executor of my mother's estate. The attorney says I do not have to
appear in court for closing of the estate, but I want to show up to document
his poor performance and get the judge to agree to lower the attorney fee.
Should I just negotiate a new fee by announcing that I might show up, or
should I address the court on my own at the hearing, or should I bring
another lawyer to the hearing, etc., etc.
Your questions are puzzling because they exhibit a basic lack of
practicality insofar as you do not answer what would appear to be an
obvious and yet also self answering two part question:
(i) If in your role as executor you want to
"fire the probate attorney" as the subject
you assign to your posting suggests, why
have you not already (long ago?) done that
and, anyway,
(ii) Have you discussed your criticisms and
concerns including about the amount of
his fee with the attorney directly and, if
so, what are the reasons each of you claim
to justify continuing disagreement?
Also puzzling is that you do not say anything about what you and the
attorney agreed would be the amount or at least measuring basis for
his fee, though it ought be apparent to you that this is information
that potentially would provide a key way to help economically to
measure what he has done, and that you refer but just vaguely to what
you believe (even if maybe corrrectly) to be the lawyer's poor
performance but do not say what if anything you tried to do in a
timely manner to obtain what you would have considered better
peformance and so you raise but do not answer the question whether,
directly or in effect, you have acquiesced in what you (only
belatedly?) would now criticise.
On the other side of the ledger, if you are suggesting that the
"closing" the attorney contemplates would include his seeking the
court's approval for whatever in the jurisdiction is the estate's
version or functional equivalent of a final accounting including
approval of his fee request -- ordinarily, a submission made in the
name of or at least directly approved (in advance of the submission)
by the executor -- you would appear also to be raising the questions
whether your attorney also in a timely fashion will have furnished you
with all law and ethically required information/documents compared
with misleading you if he is implying that you do not have any right
to object.
However, these issues, too, probably would be clarified -- maybe even
mutually satisfactorily resolved -- if you were to address your
concerns directly with the attorney in question reasonably in advance
of a confrontation in court.
It is of course possible that your just "showing up" at the last
minute and trying orally to state your objections might result in a
judicial inquiry about the lawyer's (and, perhaps, your) performance
including about what (if any) attorneys' fees ought be awarded, if the
then assigned judge is conscientious and reasonable (although your
waiting until the last minute just to "show up" might also prevent you
from knowing sufficiently in advance whether that judge is likely to
be reasonable in this connection) or, while in such event entailing
still more delay and, therefore, probable further cost, might result
at least in a postponement to enable a less disorganized and
disorderly means of judicially addressing whatever your objections may
be. But depending on information you do not provide in your posting
about to what court, where, you refer in light of the particular
history of the estate's administration, it is also possible that it it
will be then too late. And yet these, too, along with the questions
you pose, are all "possibles" that very likely would be translatable
in a more practical manner than you so far enable at least intowhat is
probable if you answer more directly than you so far have the question
above at the outset of this response.
When an exectuor and estate attorney disagree about what the amount of
that lawyer's fee ought be (a dispute that in particular cases might
include whether the lawyer has forfeited entitlement to any fee), how
most effectively to obtain a court ruling, or whether any ruling in a
contested/disputed context will be required at all, almost always will
depend on the degree to which the executor has addressed all the above
sorts of issues/questions before just "showing up" at the last minute.
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I am the executor of my mother's estate. The attorney says I do not
have to
appear in court for closing of the estate, but I want to show up to
document
his poor performance and get the judge to agree to lower the
attorney fee.
Should I just negotiate a new fee by announcing that I might show
up, or
should I address the court on my own at the hearing, or should I
bring
another lawyer to the hearing, etc., etc.
How to fire the attorney = hire a new one. The new one will take care
of everything.
But it's probably unwise to fire the estate's attorney when the
probate is about to close. What is left to do that the attorney could
mess up? If you think the probate should not be closed, then sure,
hire a new attorney if you have good reason. But if getting the
probate closed is a good thing, and all you want to do is object to
the fees, then I don't see how spending more money on a new attorney
would serve your objective. And trying to close it without an
attorney after using an attorney to bring the probate to the point of
closing would be a strange thing to do. That wouldn't reduce the
original attorney's entitlement to fees, and might delay the closing.
In some states the fees are set by statute. In that case you can
object to any motion by the attorney for extra fees, and you can file
a motion for sanctions, asking the court to order the attorney to pay
money to the estate. In some states fees are not set by statute. In
that case you can try to negotiate a reduction, but the court won't
take an interest in the issue. And it won't be easy to negotiate
anything at this point.
McGyver
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For $200/hour, this previously well-respected attorney was supposed to
handle everything about this straight-forward probate case. He has been slow
and sloppy, forced to attend a contempt hearing for late filing of
paperwork. I have corrected everything he me sent a draft of, including math
errors and failure to copy words from column a to column b on a form, and
stuff like that. I have not fired him because he keeps coming up with lame
excuses and saying the next draft is almost ready. I really don't want to
fire him now, but I don't want to pay $200/hour, either. Suggestions?
-B
to
document
Please spell out more details about the fee arrangement and the attorney's
poor performance. How was the fee determined? What work was the attorney
supposed to do for this fee? What did he or she do or fail to do?
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For $200/hour, this previously well-respected attorney was supposed to
handle everything about this straight-forward probate case. He has been
slow
and sloppy, forced to attend a contempt hearing for late filing of
paperwork. I have corrected everything he me sent a draft of, including
math
errors and failure to copy words from column a to column b on a form, and
stuff like that. I have not fired him because he keeps coming up with lame
excuses and saying the next draft is almost ready. I really don't want to
fire him now, but I don't want to pay $200/hour, either. Suggestions?
At least I am glad to hear that you are handling most things on your own and
paying him by the hour instead of giving him a big chunk out of the money in
the estate for doing it all. One suggestion is to question the total number
of hours he claims as well as his hourly fee. If his bill is for twenty
hours of work for something that you think would reasonably take two hours,
question it. Remember that as executor of the estate you can ask any
questions and challenge any bills you find suspect. In fact, it is your duty
to do so. Another thing: As executor doing a lot of jobs, you are entitled
to payment for your own work. Find out what is a reasonable fee to pay
yourself. Of course, if you are the only heir to the estate, this point not
important unless there are tax issues.
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Your questions are puzzling because they exhibit a basic lack of
practicality insofar as you do not answer what would appear to be an
obvious and yet also self answering two part question:
(i) If in your role as executor you want to
"fire the probate attorney" as the subject
you assign to your posting suggests, why
have you not already (long ago?) done that
and, anyway,
(ii) Have you discussed your criticisms and
concerns including about the amount of
his fee with the attorney directly and, if
so, what are the reasons each of you claim
to justify continuing disagreement?
Also puzzling is that you do not say anything about what you and the
attorney agreed would be the amount or at least measuring basis for
his fee, though it ought be apparent to you that this is information
that potentially would provide a key way to help economically to
measure what he has done, and that you refer but just vaguely to what
you believe (even if maybe corrrectly) to be the lawyer's poor
performance but do not say what if anything you tried to do in a
timely manner to obtain what you would have considered better
peformance and so you raise but do not answer the question whether,
directly or in effect, you have acquiesced in what you (only
belatedly?) would now criticise.
All this makes good sense. But I get the impression you are saying Here is
what an executor is supposed to do, or If you had done it right, you
wouldnt have a problem. The trouble is people in their wills often appoint
spouses or close relatives as executors, because they trust them. These
inexperienced relatives do not know much about the probate process and have
to learn as they go. Sometimes they have to wend their way through a mine
field of greedy people trying to get in on the action, especially if the
estates assets are sizeable. It is unrealistic to expect spouses or
relatives to know in advance the proper ways to negotiate fees and to
challenge fees they believe to be out of line.
So I would offer the following suggestion to a novice: Read some books on
probate written for the layman before you act. Go to Amazon.com and enter
search words such as probate, executor, and personal representative,
and find some books. One of the things you will learn from these books is
that a main job of an executor is to conserve the assets of the estate. This
means, for one thing, negotiating and challenging any fees you believe to be
inflated. Another thing you will learn is that as executor you can hire any
expert needed to do specific jobs, such as offering legal advice, preparing
tax returns, selling stock, and whatever. You do not have to get permission
from anyone to hire these professionals. Pay them their usual hourly fees.
Be on the watch that their fees are reasonable and not inflated simply
because there is a lot of money in the estate to dip into.
Another important point is that you are entitled to reasonable payment for
your own work as executor. If you elect to turn over the whole job to
someone else, say, for example, a bank, you are not only paying the bank
quite a bit of money out of the estates assets, you are also losing the
money you would earn yourself by acting as executor.
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On 20 Oct 2004, "Don Zimmerman" <doreen194@adelphia.net> wrote:
*** [P]eople in their wills often appoint spouses
or close relatives as executors, because they trust
them. These inexperienced relatives do not know
much about the probate process and have to learn
as they go. Sometimes they have to wend their way
through a mine field of greedy people trying to get
in on the action, especially if the estates assets
are sizeable.
That this can be so was obviously implicit in my earlier posting.
It is unrealistic to expect spouses or relatives
to know in advance the proper ways to negotiate
fees and to challenge fees they believe to be out
of line.
We disagree.
Not only is what you here suggest not usually "unrealistic" but, even
(or, maybe, especially) in comparatively simple estates not likely to
entail complexity, as for almost all other transactions seemingly
requiring the assistance of an attorney, it is the failure (more
commonly, an ill-advised because presumed yet actually made choice) at
the outset to ask practical questions and to establish a clear
agreement about what fees probably will be entailed (including, if if
the fact/relationship so warrants, by obtaining independent
professional advice and assistance to do so, as for a "sizeable" if
also likely to be complex estate) in so doing.
The single most important reason for fee related grievances too
commonly (but hardly only) related to the handling of decedents
estates is the choice of the client not even to bother clearly to ask
too often compounded by the related choice just willy-nilly to
acquiesce in whatever fee the attorney charges.
Relatedly, perhaps especially for estate-related matters, a kind of
"dirty little secret" (except that in/for particular estates and
certainly in the aggregate it isn't so "little") is that judges
assigned to decedents estates/trust matters typically just in effect
"rubber stamp" even something close to outright looting by
estates/trusts lawyers, although, if a disputed professional fee is
challenged in a way that requires a formal court ruling, will also
often in effect contrain a compromise settlement (not infrequently in
such cases, to avoid having to make a formal ruling) and, if that
doesn't eventuate, may even write a decision in contested cases
acknowledging and when appropriate enforcing fee-setting rules that
they were willing to tolerate being disregarded (or worse) if there
were not a contest.
This is not to say that all (or even most) lawyers and judges cheat,
or anything close; but it is to underscore both the opportunity and
desirability for exactly the uninitiated/uninformed would-be client,
perhaps especially including a recently bereaved lay person, to ask
(clearly and emphatically) including, if so doing appears desirable,
by obtaining neutral yet also professional advice.
Also too often in this (i.e., estates/trusts related) connection, the
bereaved perhaps too often just assume and presume (like this thread's
OP?) that they are "stuck" with the lawyer who drafted the will or
trust in question as, meanwhile (apparently like this thread's OP),
they may acquiesce for too long in the lawyer doing too little (or
nothing) at too high a price.
So I would offer the following suggestion to a novice:
Read some books on probate written for the layman
before you act. Go to Amazon.com and enter search
words such as probate, executor, and personal
representative, and find some books. One of the
things you will learn . . . is that a main job of an executor
is to conserve the assets of the estate. This means, for
one thing, . . .
. . . in a way that is TIMELY and otherwise effective . . .
. . . negotiating and challenging any fees you believe
to be inflated. Another thing you will learn is that as
executor you [generally] can hire any expert needed
to do specific jobs, such as offering legal advice,
preparing tax returns, selling stock, and whatever.
[Unless, pehaps, to the extent that a particular will
might clearly provide otherwise] you do not have to
get permission from anyone to hire these professionals.
Pay them their usual hourly fees. Be on the watch that
their fees are reasonable and not inflated simply
because there is a lot of money in the estate to dip into.
Another important point is that [except to the extent
that a particular will/trust may provide otherwise as
a condition of your acting] you are entitled to
reasonable [or, as the case may be, a statutorily/rule-
prescribed/computable] payment for your own work as
executor. If [the will or trust at issue or if the law of
the applicable jurisdiction does not direct that you may
not do this and if] you elect to turn over the whole job
to someone else, say, for example, a bank, you are not
only paying the bank quite a bit of money out of the
estates assets, you [may be] also losing the money
you would earn yourself by acting as executor [or, as
the case may be, subjecting the estate to perhaps
unnecessary or maybe inapprorpiate or, perhaps,
needed and reasonable fees/expense].
We agree (although another way to accomplish these ends for some
persons may be by being patient enought to find and consul a neutral
attorney or estates/trusts related accountant or like professional who
is disintersted and fair-minded and practical yet also client-oriented
and practical).
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The single most important reason for fee related grievances too
commonly (but hardly only) related to the handling of decedents
estates is the choice of the client not even to bother clearly to ask
too often compounded by the related choice just willy-nilly to
acquiesce in whatever fee the attorney charges.
I agree. The client should ask questions up front. But failure to do so
because of inexperience does not excuse overcharging.
Relatedly, perhaps especially for estate-related matters, a kind of
"dirty little secret" (except that in/for particular estates and
certainly in the aggregate it isn't so "little") is that judges
assigned to decedents estates/trust matters typically just in effect
"rubber stamp" even something close to outright looting by
estates/trusts lawyers, although, if a disputed professional fee is
challenged in a way that requires a formal court ruling, will also
often in effect contrain a compromise settlement (not infrequently in
such cases, to avoid having to make a formal ruling) and, if that
doesn't eventuate, may even write a decision in contested cases
acknowledging and when appropriate enforcing fee-setting rules that
they were willing to tolerate being disregarded (or worse) if there
were not a contest.
That would make an excellent topic for Primetime Live or 60 Minutes.
Also too often in this (i.e., estates/trusts related) connection, the
bereaved perhaps too often just assume and presume (like this thread's
OP?) that they are "stuck" with the lawyer who drafted the will or
trust in question as, meanwhile (apparently like this thread's OP),
they may acquiesce for too long in the lawyer doing too little (or
nothing) at too high a price.
Not only that, but, it is not necessary for the executor to be "stuck" with
any lawyer at all. The executor should obtain legal advice, along with other
kinds of professional advice, for specific estate related problems, as
needed.
We agree (although another way to accomplish these ends for some
persons may be by being patient enought to find and consul a neutral
attorney or estates/trusts related accountant or like professional who
is disintersted and fair-minded and practical yet also client-oriented
and practical).
But how does an inexperienced person tell the difference? Most spouses and
relatives will not know how to go about finding a neutral attorney or
accountant apart from recommendations by friends or associates, so in this
approach there is always a good bit of chance and luck. They should read the
books first!
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