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Estate Planning & Probate Law FLASHPOINTS June 2019

Nicholas R. Houska, Hartweg, Turner, Wood & DeVary, P.C. [1], Chicago
309-827-0044 | E-mail Nicholas R. Houska [2]

Below is an excerpt from §12.36 of ESTATE ADMINISTRATION FUNDAMENTALS — 2019 EDITION.

Practice Suggestions for Claiming Attorneys’ Fees

Efforts to justify a fee claim will not be effective if first commenced when an objection is posed to that claim. The documentation of the reasonable fee must begin when the representation is commenced. By drawing on experience or with reference to a proven, in-house fee schedule, counsel should be able to provide the representative with a reasonable estimate of legal fees and expenses of administration that should be expected. Advance information relative to the attorney’s basis for fee calculation and an estimate as to probable total costs based on the facts known at that time not only can minimize misunderstandings and fee disputes at the conclusion of the administration but also will lend valuable support to the establishment of a reasonable fee in the event of an objection to that fee.

To be of optimum value, the time records of the attorney should contain a detailed account of the actual service rendered the estate and the time necessary for the performance of that service. Special note should be made in the time records of those particular elements of value that may characterize the specific service rendered. See §12.19 above. Of particular importance at a later date could be the contemporaneous documentation of the novelty or complexity of the matter resolved, the diligence with which the matter was approached, and the advantages accruing to the estate as a result of the service rendered.

Also, time records should be in such a format as to be easily assimilated and understood by an attorney-expert witness if testimony may be desirable as proof of the value of the services noted. It should be kept in mind that even if the attorney-expert is not used, comprehensive time records can be valuable in lending positive direction to the independent judgment of the trial court. The particular judge who may be asked to determine the reasonableness of the fee claimed may not be familiar with the probate process and the varied demands placed on the time, ingenuity, and abilities of the attorney claimant in the course of the administration of an estate. Clearly drawn time records can make a convincing contribution to the court’s education in that regard.

Throughout the probate proceedings, the attorney should keep in mind the following:

1. For the attorney’s services to be compensable, they must be rendered in the best interests of the estate.

2. Some months after the fact, it may be necessary to distill from the fee claim those elements of value that support and justify an award of reasonable compensation. See §12.19 above. The greater the number of elements of value characteristic of the service rendered, the greater the probable impact on the fee award.

3. Consideration and preparation of the proofs of the value of the reasonable fee should be as imaginative and expansive as possible. A combination of detailed time records, expert testimony, and the compatibility of the claimed fee with an in-house schedule of fees based on experience and the customary fee in the area in which the services are rendered (see §§12.20 – 12.25 above) can be most persuasive and influential on the exercise of the independent judgment of the trial court (see §12.26 above).

4. Because of the burdens imposed by the standard of appellate review, the importance of the trial court record in the presentation of the fee claim cannot be discounted. The more detailed that record is, the more likely it is that the award of the trial court will be upheld. See §§12.27 – 12.29 above.

With concentrated focus on the above issues throughout the course of the administration of the estate, the opportunity for the award of reasonable compensation to the attorney for services rendered is enhanced considerably. It is the attorney’s obligation to direct that focus and assume the primary responsibility for the ultimate award of a reasonable fee.

For more information about business law, see ESTATE ADMINISTRATION FUNDAMENTALS — 2019 EDITION. Online Library subscribers can view it for free by clicking here [3]. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions [4].

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