Estate of Nicholas Michael Fusco

Case Number

21PR00542

Case Type

Hearing Date / Time

Mon, 11/27/2023 - 08:30

Nature of Proceedings

Petition for Final Distribution

Tentative Ruling

Probate Notes:

Appearances required. The petition is recommended for approval in part, and denial in part.  The part of the petition recommended for denial is the request for extraordinary fees by Mr. Morris.  The following analysis is provided for counsel to address at the hearing:

“[T]he court may allow additional compensation for extraordinary services by the attorney for the personal representative in an amount the court determines is just and reasonable.”  (Prob. Code, § 10811 [emphasis added].)

To determine reasonableness, the court must look to discretionary factors, which includes the following:

1. Whether the amount of statutory compensation is sufficient to cover the ordinary services performed and the extraordinary services claimed (In re Buchman's Estate (1955) 138 Cal.App.2d 228, 235. See also Rule 7.703, subd. (a); Estate of Getty (1983) 143 Cal.App.3d 455 [discussing in dicta that massive statutory compensation can be sufficient to cover unexpected intricacies in estate administration]; and Estate of Hilton (1996) 44 Cal.App.4th 890, 912-13 [citing In re Walker's Estate (1963) 221 Cal.App.2d 792, 795 for the proposition that probate courts can disallow all extraordinary fees claims if they find statutory compensation sufficient]), keeping in mind the legislature’s policy of subsidizing fees in more complicated estates with those easily earned in less complicated estate (Estate of Hilton, supra, 44 Cal.App.4th at p. 916 [“The Legislature merely determined, in substance, that any under-compensation involved in handling small estates would be equitably adjusted in the long run by overcompensation in handling larger estates.”]);

2. The size of the estate (Estate of Hilton, supra, 44 Cal.App.4th at p. 918);

3. The work performed by the attorney (Estate of Fulton (1937) 23 Cal.App.2d 563, 567);

4. The kind and character of the assets in the estate (In re Walker's Estate, supra, 221 Cal.App.2d at p. 795);

5. The effort involved in the care and preservation of estate property (Ibid.);

6. Facts that bear upon the labor and effort of the executor, administrator and attorney in the routine administration of the estate (Ibid.);

7. Whether the work performed was beneficial to the estate (In re Buchman's Estate (1955) 138 Cal.App.2d 228, 235);

8. Whether the work performed was necessary (Ibid.); and

9. The character of the services rendered (Ibid. [“was it performed in carrying out the ordinary duties of the personal representative, or was it in fact extraordinary.”])

If the court determines “the sum allowed by law appears to be a reasonable compensation, even though the attorney may have performed some extraordinary services, it is within the sound discretion of the trial court to disallow claims for extra compensation, and, unless it appears that there has been an abuse of discretion, an appellate court is not at liberty to disturb the conclusion of the trial court.  (In re Fulton's Estate, supra, 23 Cal.App.2d at p. 567.)

IN THIS CASE, the billing statement submitted shows a total of 21.50 hours spent on extraordinary services to the estate, at a rate of $450-475 per hour for Mr. Morris, and $160 per hour for Ms. Gary.  While the rate for Ms. Gary is not high compared to the community standard, the rate for Mr. Morris is over $75 per hour more than the Court regularly approves for the high end of the community standard.  Thus, at minimum, the Court should deny the request past $400 for 20.8 hours by Mr. Morris.

Additionally, the description of the work performed reveals that nearly all of the work performed by the attorney in this matter was for work that can be said to be regularly performed in estates valued at $1.5 million or higher.  While the descriptions do not fully measure up to the level of detail required by CRC, Rule 7.702, the descriptions are enough for the Court to determine that the $31,148 statutory fee is more than sufficient to compensate for the work performed in this case. 

This is especially true when the Court takes into consideration that there is no evidence presented that shows the performance of any legal work by the attorney for petitioner other than that billed as extraordinary.  There was no real or personal property that had to be sold, no legal action that had to be prosecuted to clear title to, or gain possession of property, and no creditor claims that required legal work to dispute.

Accordingly, the Court should deny the request for extraordinary fees in toto.