New York Probate and Estate Administration Lawyer Blog
On 4 July 2009, the decedent died prompting the petitioner to employ the services of a lawyer. A retainer Agreement was entered into by the parties stipulating the amount of attorney’s fees to be paid. Thereafter, the petitioner questioned the amount billed by the lawyer as his attorney’s fees alleging a wrong calculation of the estate as the basis, among others.
How much should, actually, be the attorney’s fees? What should be included or excluded?
A New York Probate Lawyer said the court has ruled that the ultimate responsibility for approving legal fees that are charged to an estate and the discretion to determine what constitutes reasonable compensation for legal services rendered in the course of an estate lies with them. While there is no hard and fast rule to calculate reasonable compensation to an attorney in every case, the court is required to exercise his or her authority “with reason, proper discretion and not arbitrarily”.
In determining the cost of legal services, several factors are considered and these include – time spent; complexity of the questions involved; nature of the services provided; amount of litigation; amounts involved and the benefit resulting from the execution of such services; lawyer’s experience and reputation; and, customary fee charged by the Bar for similar services. The fee must be the result of all the elements set forth, in balance. The legal fee must also bear a reasonable relationship to the size of the estate. A sizeable estate permits adequate compensation, but nothing beyond that. The size of the estate can operate as a limitation on the fees payable, without constituting an adverse reflection on the services provided.
NY Probate Lawyers said the burden of proof as to the reasonable value of legal services performed rests on the attorney performing those services. Contemporaneous records of legal time spent on estate matters are of importance.
An attorney may not be reimbursed for expenses that the court normally considers to be part of overhead, such as photocopying, postage, telephone calls, messengers and couriers, express deliveries and computer-assisted legal research and other items of the same matter. The court concluded that it would permit reimbursement for such disbursements only if they involved payment to an outside supplier of goods and services, adopting the standards set forth by previously decided similar cases. The court prohibited reimbursement for ordinary postage and telephone charges other than long distance.
A Queens Probate Lawyer said that the retainer agreement was unclear at best. It states a fee of five percent of the gross estate for the “probate” (estate litigation or will contest) of the decedent’s will. The administration of the estate (estate administration) was not addressed. The billing records submitted to the court were prepared after the petitioner commenced this proceeding; they were not prepared contemporaneously. The bill included entries of 2.3 hours for the “trip to the Court to file the petition – the payment of the filing fee, “.45 hours for the “trip to the Post Office – mailed out notices certificates mail return receipt” and for other services that are not properly billable as attorney’s fees, such as faxing. Additionally, the time spent on many items exceeded that which would be expected for the tasks listed. A good example was when the respondent billed 1.75 hours of time on a meeting with a process server to “review and discuss[] service.” There was no delineation of disbursements.
All the same, the respondent did perform certain services that resulted with the will being filed for a probate proceeding and the estate administered. Based on the benchmarks set forth above, the court fixed the respondent’s legal fee at $18,000.00, inclusive of disbursements. The respondent was ordered to refund to the petitioner, as executor of the estate, the amount of $17,375.00 (difference between the amount paid and the amount allowed).
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