Estate of James Harvey Bailey

Case Number

20PR00422

Case Type

Hearing Date / Time

Tue, 07/01/2025 - 09:00

Nature of Proceedings

Petition for Attorney's Fees

Tentative Ruling

Probate Notes:

Appearances required.

There is no amendment to the petition on file, and no Petition for Final Distribution pending.

The following was provided to the Court at the last hearing (March 11, 2025):

On January 21, 2025, the personal representative in this case filed a petition titled “Petition for Reimbursement of Attorney's Fees to Olan Mills Jr. and Payment of Attorney's Fees On Appeal.”  Petitioner cited to Probate Code section 11004 for authority to bring the petition, but that section does not confer authority upon the court to pay attorney’s fees incurred by those who represent the personal representative, absent a petition for an accounting.  That statute sits in the statutory scheme governing accountings in decedent’s estates.

However, Probate Code section 10830 does allow either the personal representative or the attorney for the personal representative to file a petition for allowance on the compensation of either person, on noticed hearing “at any time after four months from the issuance of letters.”  (Prob. Code, §10830(a).)  According to that section:

On the hearing, the court may make an order allowing the portion of the compensation of the personal representative or the attorney for the personal representative, as the case may be, on account of services rendered up to that time, that the court determines is proper. The order shall authorize the personal representative to charge against the estate the amount allowed.

(Id. at subd. (c).)

If petitioner desires to have the Court order compensation under this statute, the Court should order the petition to be amended to cite the proper code section, and include necessary allegations under the code to justify payment of attorney’s fees before a Final Account and Report is filed.  Further, because Petitioner is arguing for reimbursement of attorney’s fees incurred in seeking probate of the will and defending the admission of the will on appeal, petitioner must amend the petition to include discussion of the equitable nature of the claims being made. (See e.g. Smith v. Szeyller (2019) 31 Cal.App.5th 450, 459 [Trust beneficiaries must generally pay their own attorney's fees incurred challenging a trustee's conduct, even if they succeed. [Citations.] But under the substantial benefit exception, the trial court may exercise its “equitable discretion ... [to] determine[ ] whether the interests of justice require those who received a benefit to contribute to the legal expenses of those who secured the benefit.” [Citations.] The doctrine is an “outgrowth” of the common fund doctrine. [Citations.]”  See also Estate of Gump (1982) 128 Cal.App.3d 111, 118; Serrano v. Priest (1977) 20 Cal.3d 25, 38.)

Appearances:

The court is open to the public for court business. The court is also conducting hearings via Zoom videoconference.

Meeting ID: 160 543 3416

Passcode: 5053334