Attorneys' Fee--The necessary evil of paying for justice can be managed in many ways with some creativity

Posted by Keith A. Davidson on September 16, 2011

Attorneys' fees--about as enjoyable as "death and taxes."  The unfortunate reality of our legal system is that it takes money to stand up for your rights.  In this video we discuss the ways in which we work with clients to offer various fee arrangements in representing them in California Trust and Will litigation.  For those viewing this blog by email subscription, you can click on the title for a link to the video.

Family "Squabbles" Can Cost You

Posted by Keith A. Davidson on July 22, 2011

Conservatorship litigation is nasty business, primarily because at the center of every conservatorship dispute is a helpless conservatee (usually an elder adult) who is caught in the middle of the family fight. 

And that family fight may just cost the parties a good deal of money from their own pocket.  As reported by Marc Alexander and William M. Hensley on their California Attorney’s Fees blog, the California Appellate Court (in Conservatorship of Alcaraz) just made a very harsh example of two conservatorship litigants who thought they deserved reimbursement from the conservatorship estate for their attorneys' fees.  One party (the winning party) requested over $80,000 in attorney’s fees, and the losing party requested over $40,000. 

The trial court cut the fees request substantially, awarding the winning party $20,000 and the losing party a mere $8,000.  Primarily because the conservatorship estate only had $180,000 in assets and the fee requests would have taken 70 percent of the conservatorship estate.

The winning party appealed the fee ruling, but the appellate court agreed with the trial court.  The bottom line is that the trial court can award what it sees fit, and only amounts that the court feels were spent for the benefit of the conservatee directly are allowable.  Any amounts spent by family members due to a family “spat” is on their dime, not the conservatorship estate.

The costs of litigating conservatorship matters is already higher than other forms for trust and will litigation because the filing fees are excessive, and the parties have to pay in advance for the court investigator to interview the proposed conservatee.  All told, a conservatorship filing can cost as much as $1,750 just in filing fees to the court, not to mention the attorneys fees spent to draft and file the conservatorship pleadings.  And if another family member files a competing petition, and long litigation ensues, that lawsuit may be paid from your own pocket.  A tough result for a family in a tough position.

Alleged Financial Elder Abuser Must Face the Music: Los Angeles County Superior Court Keeps Lawsuit Alive

Posted by Stewart R. Albertson on May 06, 2011

Trust and Will lawsuits often provide different paths to the same destination. My client, a trust beneficiary, recently filed a lawsuit against a trustee of a California trust for financial elder abuse, and at the same time sued for undue influence to set aside the Trust amendment created at the hands of the Trustee/Abuser. In this case the Trustee ended up with a significant portion of the Trust and my client was effectively disinherited.

The Trustee, hoping for an easy out, tried to convince the Court that the elder abuse claim should be dismissed summarily (called a demurrer) because the claim was based on a transfer by Trust, and in his opinion, the abuse of the elder did not actually occur until the trust creators died and their Trust became irrevocable (the “taking argument”). His claim was that the beneficiary cannot use the same undue influence facts to (1) overturn the Trust amendment, and (2) sue for financial elder abuse.  In other words, he may have been an undue influencer for purposes of the Trust amendment, but not for purposes of financial elder abuse.

But California law disagrees. Specifically, there are three different ways in which financial abuse may be pleaded under the Elder Abuse Act found at Welfare and Institutions Code section 15610.30(a), which states a person is guilty of financial elder abuse if they take property of an elder for wrongful use, or with intent to defraud, or by way of undue influence. (Welf. & Inst. Code, § 15610.30, subdivisions (a)(1), (a)(2), and (a)(3).) Thus, the act of undue influence used to overturn a California Trust (or in this case a Trust amendment) can also be used to establish a claim for financial elder abuse. Further, the Elder Abuse Act defines a “taking” to include the receipt of assets by a “testamentary instrument”, which includes California trusts and wills. (Welf. & Inst. Code, § 15610.30(c).)

Does this mean my client would get double damages, one with the Trust set aside and another in the amount of the property taken? No. But it does mean my client can proceed on both claims and take full damages under either one. For example, the elder abuse statute allows for punitive damages and attorneys’ fee whereas the Trust set aside claim does not.

The trial court heard oral argument on the demurrer on May 5, 2011. After hearing oral argument, the trial court was persuaded that the financial elder abuse claim could go forward based on undue influence as it was properly pleaded in my client’s lawsuit, and was supported by the Elder Abuse Act.

The next time you see facts showing a “garden-variety” trust or will contest, think about whether those facts also support a claim based on financial elder abuse.

New California Decision Puts Bank Trustees at Risk for Attorney Fees

Posted by Stewart R. Albertson on February 10, 2011

We plan to have guest posts from time to time on our blog. Our first guest post, by Richard D. Cleary and Thomas E. McCurnin, can be viewed by clicking here. Messrs. Cleary and McCurnin surmise that a recent case decided by the Court of Appeal, Donahue v. Donahue, may have far-reaching consequences for bank trustees.

As an aside, I litigated a case against Mr. McCurnin several years ago. I can truly say it was an enjoyable experience. Also, I've had the privilege of arguing a court of appeal case in front of Justice Richard M. Aronson, who wrote the opinion for Donahue.

I hope our blog readers will enjoy Mr. McCurnin's and Mr. Cleary's article entitled "New California Decision Puts Bank Trustees at Risk for Attorney Fees".

"Ordinary" Attorney's Fees and "Extraordinary" Attorney's Fees in Probate

Posted by Stewart R. Albertson on December 13, 2010

Marc Alexander’s and William M. Hensley’s outstanding blog on California attorney’s fees recently commented on Estate of Fernandez, where Justice O’Leary discussed the difference between “ordinary” and “extraordinary” attorney’s fees in the probate arena.

So, what is the difference between “ordinary” and “extraordinary” attorney’s fees that you pay an attorney to “probate” your loved ones estate?

Let’s take “ordinary” attorney’s fees first. California law sets the maximum amount an attorney may be paid for “probating” an estate (referred to as “ordinary fees” or “statutory fees”) as follows:

  • 4 % of the first $100,000 of estate value
  • 3 % of the next $100,000
  • 2 % of the next $800,000
  • 1 % of the next $9,000,000
  • ½ % of the next $15,000,000

Let’s take an example. If your parents’ estate (after they have both died) is worth $1,000,000, then the ordinary fee for probating your parents’ estate would be:

  • 4 % x $100,000 = $4,000
  • 3 % x $100,000 = $3,000
  • 2 % x $800,000 = $16,000

Thus, the ordinary fee would be $4,000 plus $3,000 plus $16,000 for a total ordinary fee of $23,000.

 “Extraordinary fees” are fees paid to an attorney probating an estate for extraordinary services—that is services that fall outside of the routine services required for a typical probate.   Extraordinary fees are based on:

(1)   the value of the estate,

(2)   the difficulty of the extraordinary tasks performed and time spent,

(3)   the results achieved, and

(4)   whether those results benefitted the estate.

Most extraordinary fees arise due to probate litigation (i.e., a Will Contest), the sale of real property, or handling difficult tax issues arising in a probate administration.

For example, if a Will Contest is filed by a beneficiary, lawyers will likely be retained to represent the estate and their fees will be paid as extraordinary fees—in addition to the ordinary fees.   

If the Will Contest litigation resulted in extraordinary attorneys’ fees of $30,000, then the total attorneys’ fees for the estate could equal $53,000, which is $23,000 for the ordinary fees and an additional $30,000 for the extraordinary fees. Of course the Probate Court would have to approve both the ordinary and extraordinary fees, but it is likely the Probate Court would approve such fees as outlined above.