Disagree with amount due Attorney

[NothingIsSimple]

What is the name of your state? CALIFORNIA

For an estate value of $215,000 could someone please tell me what the fees due the attorney would be ??? I come up with $7,300. Also this attorney insisted on a retainer fee of $1500.00 - which was paid to her. In checking I am hearing that taking a retainer fee is highly improper on a Probate case. She also added my mothers bank accts into probate when in fact they were payable upon death and she has admitted that. Consequently, I incurred alot of late penalties on bills because I did not have access to my mothers accts. She is now requesting the balance of her fees be paid and she will put into a client trust fund. Bottom line she has screwed this case up from the get go. Please help ! (I am now executor and sole beneficiary as my aunt who was executor died suddenly).

 

[seniorjudge]

What is the name of your state? CALIFORNIA

For an estate value of $215,000 could someone please tell me what the fees due the attorney would be ??? I come up with $7,300. Also this attorney insisted on a retainer fee of $1500.00 - which was paid to her. In checking I am hearing that taking a retainer fee is highly improper on a Probate case. She also added my mothers bank accts into probate when in fact they were payable upon death and she has admitted that. Consequently, I incurred alot of late penalties on bills because I did not have access to my mothers accts. She is now requesting the balance of her fees be paid and she will put into a client trust fund. Bottom line she has screwed this case up from the get go. Please help ! (I am now executor and sole beneficiary as my aunt who was executor died suddenly).

If you are the executor, then what did the probate judge say when you made these complaints to the court?

 

[Dandy Don]

Did you sign an agreement to pay a retainer? She is allowed to charge a retainer IF YOU WERE PREVIOUSLY UNAWARE OF THE EXECUTOR FEE RATE, but I agree it's shady for her not to be upfront about the correct executor rate right in the beginning.

This is outrageous conduct--any other California probate attorney can tell you what the legally allowable rate is and you will find it is reasonably less.

Fire this attorney and get someone else immediately.

Who was the payee for the payable on death accounts--that money should have been paid by the bank--that person should contact the bank immediately to ask the bank to ask this attorney to release the money to the correct payee.

And after everything's been resolved, file an ethics complaint with the state bar association.

If you don't want to lose the retainer you've already paid: after you have found out what the correct executor fee rate is, let her know that you know what the correct amount is and that she is not entitled to more than that. Discuss it now to get an agreement of what the exact amount will be and if she will not agree, get someone else.

DANDY DON IN OKLAHOMA (tiekh@yahoo.com)

 

[NothingIsSimple]

If you are the executor, then what did the probate judge say when you made these complaints to the court?

My mom died 2-11-04 - my aunt was executor due to a messy divorce I had been going through and we left it that way - which was fine. However, my aunt did not know and paid the attorney the retainer fee. Then my aunt(she lived in Oregon) suddenly died 3-14-05.

My aunt and I assumed the attorney knew what she was doing so when she said the bank accounts were part of probate we believed her. After my aunt died the attorney had the bond for my aunt dropped (why who knows??) and had the court appoint me as executor. So I have never gone before a probate court/judge. My aunt had not paid all my moms bills and because I did not have access to my moms accounts - there are alot of late charges and penalties. I'm on a medical retirement so I was paying my bills and trying to alternate mine with my moms. I asked the attorney numerous times if we couldnt ask the court to grant permission for me to access my moms bank accts and she said it wasnt possible.

Im to meet with her this Friday and fees due to her are 4% on the first 100,000 3% on the second 100,000 and 2% on the next 800,000 - based on the estate value of $215,000 my calculation is $7300.00 Then if you minus the $1500 retainer that becomes $5800. I feel that due to the late charges and penalties accrued because I did not have access to my moms accts when iin fact they were payable upon death - I should be able to at least deduct those charges.

Plus to further screw up matters, by those accounts not being payable to me and I am the sole beneficiary, when my aunt died, my cousins ended up with access. It took me from last April until almost October to get my moms accts in my name. The only time the atty helped me is when the bank told me they didnt know where my moms accts were and she did so because she was worried about her fee. My aunt verbally told myself, my son and the attorney she was waiving the executor fees as that was her sister. I wanted to thank her for her help and gave her my grandmothers engagement ring that was left to me (as it was her mothers). My cousins refuse to sign the waiver and wont return the ring. I told the attorney being that I am having to finish my moms acctg and file her taxes etc., I want to ask the court for the fee to be split between my self and my cousins. She said she would ask for 60-40 - with 40 being my share.

She states I owe her $6509.10 based on those same percentages. And she says that is after the $1500 has been deducted and that they are giving me a break due to adding my moms bank accts into probate.

When I say "she" I actually mean this comes through her paralegal. Furthermore she wants me to bring $6509.10 in on Friday and they said they will put it into a client trust acct until probate is concluded. And I'm thinking "you have got to be kidding me".

So, what do you think ?

 

[divgradcurl]

She states I owe her $6509.10 based on those same percentages. And she says that is after the $1500 has been deducted and that they are giving me a break due to adding my moms bank accts into probate.

She can't charge more than the statutory maximum 4%/3%/2% given in California Probate Code 10810. A lawyer can be paid more for "extraordinary services" under Cal. Prob. C. 10811, but these extra fees are generally awarded by a judge, the other side can't just simply demand them. Also, there is no statutory bar to asking for a retainer up front -- it may not be common practice, or even good practice, but it's not statutorily barred.

Do not pay anything more than the statutory maximum -- in fact, in your case, I wouldn't pay anything more at all, and instead would file for fee arbitration with the state bar -- go here for more info: http://www.calbar.ca.gov/state/calbar/calbar_generic.jsp?cid=10428&id=1325

If you request fee arbitration, the attorney MUST go along with it -- in this case, I think there is no downside to you to request fee arbitration, so that's the route you should probably take.

 

[Dandy Don]

Exactly who did the work of the executor here? If this attorney was never named as official executor, then she can't claim an executor fee.

Did you understand exactly what you were signing when you signed a fee agreement with her at the time you paid a retainer? Lawyer is taking advantage of your ignorance--she will want to claim retainer plus executor fee, which she might get if that is what you signed in agreement to, unless you make your specific objection known.

Where did you get your information about the executor fee percentages from--this attorney or elsewhere?

You are the one who deserves the executor fee and there seems to be no justification for anyone else claiming any part of it.

DANDY DON IN OKLAHOMA (tiekh@yahoo.com)