Probably no legal issue is the subject of more questions to WASHINGTON PROBATE than the fees of the Personal Representative and his/her attorney, for example:
Consequently, we have prepared this discussion and in it gone into more detail than usual, in the hope of providing you with greater perspective with the issues involved. Chances are that this discussion will provide far more than you ever wanted to know about probate fees in Washington, and we encourage you to use your “Page Down” key liberally: “Take what you want and leave the rest behind.” And while focusing on probate fees in Washington, we shall both begin and end in California.
Unlike Washington, California provides by statute for probate fees (known as “Statutory Fees”) that are typical of those provided by many and perhaps most jurisdictions:
|Ordinary Fee “Formula”||Total Fees for Each of PR & Attorney|
|4% on the first $100,000||$4,000 on $100,000|
|3% of the next $100,000||$3,000 for a total of $7,000 on $200,000|
|2% of the next $800,00||$16,000 for a total of $23,000 on $1 million|
|1% of the next $9 million||$90,000 for a total of $113,000 on $10 million|
|0.5% of the next $15 million||$75,000 for a total of $188,000 on $25 million|
|An additional reasonable
amount on the balance
The Ordinary Fee is provided for performing the usual and ordinary services typical in administering a probate estate and is not subject to Court approval (ie, the Personal Representative and his/her attorney are entitled to it by right).
To give you some idea how “Ordinary” probate fees in California can add up, here are some representative examples:
|Estate Value||PR’s Fee||Atty’s Fee||Total Fees||% of Estate|
Any agreement between an heir or beneficiary and the Personal Representative for compensation in excess of the above amounts is void. Calif. Prob. Code § 10803 Any agreement between a Personal Representative and his/her attorney for compensation to the attorney in excess of the above amounts is void. Calif. Prob. Code § 10813 If two or more persons act as co-Personal Representatives, then they share the fees. Calif. Prob. Code § 10805 If two or more attorneys serve the Personal Representative, then they share the fees according to services actually rendered or as they may agree. Calif. Prob. Code § 10814 If an attorney serves as Personal Representative, then he/she is entitled to receive the fee of a Personal Representative but not additional fees as attorney for the Personal Representative unless the Court approves the right to additional compensation in advance and finds it to be to the advantage, benefit, and best interests of the estate. Calif. Prob. Code § 10804
Bottom-line: An ‘Ordinary” fee based solely on the gross value of the estate + an “Extraordinary” fee for extraordinary services in a “just and reasonable” amount determined by the Court.
The original laws of Washington provided for a probate fee not unlike those currently in California. Laws of 1854, p. 295 (Rem. & Bal. Code § 1549)
|Ordinary Fee||Total Fees|
|7% on the first $1,000||$70 on $1,000|
|5% of the next $1,000||$50 for a total of $120 on $2,000|
|4% of the balance|
In 1917, however, the legislature amended the law to provide for the compensation for both the Personal Representative and his/her attorney to be “such fee as the Court may seem just and reasonable.” Probate Code of 1917 (Rem. Comp. Stat. § 1528). This change was interpreted by the Washington Supreme Court in Estate of Perry, 168 Wash. 428 (1932):
|By this amendment, the legislature clearly evidenced its desire to change the former system of compensating an Executor by paying him a percentage of the estate without regard to the nature, extent, or value of the services rendered by him …, and the Court, now, in fixing the fee of an Executor or Administrator, must take into consideration … the services rendered, and fix such compensation as, in view of all the circumstances, is just and reasonable.The intent of the legislature is manifest to depart from the former fixed and arbitrary percentage standard and establish a new more equitable rule…. Under the new rule, the compensation is commensurate with the value of the services rendered, and, while the value of the property of the estate and the resulting responsibility resting upon those who administer the same … is important …, that element should not be given too great weight in considering [the amount of the Personal Representative’s compensation]. Estate of Perry at pp. 435-436.|
Bottom-line: In 1917, the Washington legislature rejected probate fees based on “the former fixed and arbitrary percentage standard and establish[ed] a new more equitable rule” — based on the value of services rendered to the estate, as determined by the Court.
Probate fees in Washington are currently provided under RCW 11.48.210 as follows:
If the Descendant sets an amount for compensation in his/her Will, that in effect puts the named Personal Representative who desires to receive compensation to an election:
A third alternative exists, of course, and that is for the Personal Representative to waive compensation, which can be advantageous, especially if the Personal Representative is the sole Heir or Beneficiary, and the estate is not so large as to benefit from receiving a tax deduction for compensation paid. See: Tax Consequences of Payment of Compensation. For the form to accomplish this waiver, see: Is Compensation Required to be Paid?
In determining the amount of compensation, the Court will consider the nature of the services rendered, the time required to perform the services, the diligence with which the services are performed, and the values of the assets necessitating the rendition of service. Estate of Bailey, 56 Wn.2d 6223 (1960). And, as stated above, while the value of estate assets is taken into consideration, it is not to be given great weight in the determination of compensation. Estate of Perry, cited above.
The Court may also increase or decrease the amount of “reasonable and just” compensation to be paid to the Personal Representative:
|(26) Pay reasonable compensation to the trustee … considering all circumstances including time, effort, skill, and responsibility involved in the performance of services by the trustee; RCW 11.98.070(26)|
A Nonintervention Personal Representative, therefore, has authority to pay him/herself “reasonable compensation” for his/her services as Personal Representative.
No. The simple solution to the issue of paying compensation to the Personal Representative is for him/her to waive its payment. If you, as named or appointed Personal Representative, have decided to waive any receipt of compensation, it would be easiest (although not necessary) to state that by filing a:
|Waiver of Compensation by Personal Representative form.|
And you have decided not to accept that amount and instead want the Court to determine the “just and reasonable” amount of compensation to be paid to you, you are required (RCW 11.48.210) to file prior to your appointment a:
|Renunciation of Compensation Specified in Will & Election re Court Determination form.|
Compensation of Personal Representatives in King County currently appears to be as follows:
Although not expressly provided in the statute referenced immediately above, it would appear that payment of compensation may be made to a Nonintervention Personal Representative from time to time following the rendition of the actual services for which payment is being made (ie, not “paid in advance”), and preferably following the filing of the Declaration of Completion of Probate and the expiration of the 30-day objection period if a Receipt & Waiver has not been received from every Heir or Beneficiary remaining interested in the estate.
In the usual course of probate administration, a Nonintervention Personal Representative accounts for his/her compensation paid or to be paid in the paragraph of his/her Declaration of Completion of Probate dealing with “Fees. The fees paid or to be paid to each of the following are as follows: (a) Personal Representative $—, (b) Attorneys $—, etc.” RCW 11.68.110(1)(g)
An Heir or Beneficiary’s recourse to question the Nonintervention Personal Representative’s compensation is to file an Objection to the Personal Representative’s Declaration of Completion of Probate requesting the Court:
Consequently, if you believe the compensation proposed or paid to be unreasonable:
If your concerns remain, …
For the procedure involved in filing such an Objection, see: Objecting to the Declaration of Completion of Probate.
Bottom-line: If you have any concerns whatsoever about the amount of compensation paid or proposed to be paid to the Personal Representative as stated in his/her Declaration of Completion, and especially if after discussing your concerns with the Personal Representative or his/her attorney, you remain concerned, WASHINGTON PROBATE urges you to immediately seek the advice of legal counsel in your locale, timely file an Petition for Order re Declaration of Completion, and serve a copy of your Petition on the Personal Representative.
The Supreme Court opined, “The amount seems large, but the estate is a large one, and the extent of the labor and responsibility cast upon the Executor was better known to the trail court than it is to us…. A study of the record reveals nothing which would warrant a holding that there was here any abuse of discretion.” At p. 322.
The Supreme Court opined “… [T]he allowances made … are so excessive, measured by the size of the estate and the services rendered, as to amount to an abuse of discretion in the trial court making them…. There was no substantial litigation, and no difficult problems to solve or controversies to adjust.” At p. 413. And held: Additional compensation allowed for general administration of $2,000 for each of the PR and his attorney.
The Supreme Court opined “Practically the sole services performed by the Executor consisted of taking possession of the securities, clipping the coupons therefrom as they matured, and depositing the same in the bank. The legal services rendered by the Executor’s attorney consisted of the ordinary routine matters connected with an extremely simple probate proceeding, … The Executor expressly disclaimed the rendition of any unusual services, and it is evident that none were required or rendered, either by the Executor or by his counsel.” At p. 430. And held: Compensation allowed of $2,000 for the PR and $3,000 for his attorney.
The Supreme Court affirmed, in light of “… [T]he total value of the partnership estate and what was done and required to be done….” At p. 246.
The Supreme Court affirmed, stating “The allowance to [the PR] was less than $1,500 per year, which seems small enough.” At p. 68.
Notice that the most recent of these cases is 1936. Apparently, the Supreme Court does not like to hear probate compensation cases, Heirs and Beneficiaries have become more accepting of probate fees, or Personal Representatives have become less greedy.
Now, let’s shift to some other issues regarding compensation.
Payment of compensation for the Personal Representative’s services often becomes an issue when there are multiple heirs or beneficiaries within the Descendant’s family and one (or some but not all) of them serves as Personal Representative. Usually, he/she is willing to serve, and the other members don’t want to serve and are happy for him/her to serve, and he/she doesn’t want to serve “for nothing,” and the others recognize that he/she is providing a service, that they are benefiting from it, and that it is only fair that he/she receive something for his/her service. Query: How much? What’s fair? Just what is “reasonable” compensation?
On this question, WASHINGTON PROBATE offers several suggestions:
Payment of compensation by an estate to the Personal Representative or to his/her attorney has several tax consequences:
Caution: The “constructive receipt” doctrine. The constructive receipt doctrine, a part of federal tax law and not state probate law, effectively says that a taxpayer who has received a check:
Consequently, if it is clear to you that you do not desire to receive compensation for services as Personal Representative, it would be to your advantage for tax purposes to file a Waiver of Compensation as early in the probate as possible, preferably within the first few months of your appointment, and most easily when you file your Petition for Letters.
Consequently, the greatest potential for tax savings as a result of payment of compensation arises in the case of:
Now let’s shift to issues expressly surrounding compensation for the Personal Representative’s attorney.
Basically, everything stated above as regards the payment of compensation to a Personal Representative applies similarly to the payment of compensation to any attorney engaged by the Personal Representative and who performs services for the benefit of the estate — namely, that such compensation shall be “just and reasonable.” RCW 11.48.210
This conclusion is strengthened and expanded by the Washington Supreme Court’s most recent case on probate attorney’s fees, Estate of Larson, 103 Wn.2d 517 (1985), a Nonintervention estate in which:
The Probate Commissioner upheld attorney’s fees of $23,145 set by the PR and charged the objectors with additional attorney’s fees of $10,000 awarded to the PR’s attorney for time spent justifying his original $23,145 fee to the Commissioner following the objections.
The trial Court upheld the Commissioner’s ruling and awarded additional fees of $4,030 to the attorney for his time spent in justifying his original fee to the trial Court.
The Appellate court held: The attorney had justified his fee and the additional fee awards were proper. And awarded the attorney additional fees for his time spent in justifying his original fee to the Appellate Court, although the Appellate Court reversed the trial Court and found that the additional fees were chargeable against the estate, not the objectors.
The Supreme Court took a different view:
|In probate, the attorney-client relationship exists between the attorney and the Personal Representative of the estate. [Citation omitted.] The Personal Representative stands in a fiduciary relationship to those beneficially interested in the estate. He is obligated to exercise the utmost good faith and diligence in administering the estate in the best interests of the heirs. [Citation omitted.] The Personal Representative employs an attorney to assist him in the proper administration of the estate. Thus the fiduciary duties of the attorney run not only to the Personal Representative but also to the heirs.Generally, this Court will not interfere with an allowance of attorney fees in probate matters unless there are facts and circumstances clearly showing an abuse of the trial court’s discretion. Estate of Belknap, 12 Wn.2d 643 (1942); Estate of Fetterman, cited above….
Estate of Peterson [cited above] sets forth the criteria to be considered in evaluating attorney fee requests in probate proceedings…. See also Estate of Bailey [cited above]….
The testimony is uncontroverted that an inordinate amount of time was spent on investing estate monies and preparing [tax] returns for an estate that presented no difficult or complex legal or administrative problems. Reason and fairness compel us to observe that clients should not be expected to pay for the education of a lawyer when he spends excessive amounts of time on tasks which, with reasonable experience, become matters of routine. [Citation omitted.]
Nor should a client be expected to pay for work that is duplicative. [Citation omitted.] A review of the record indicates that [the attorneys] duplicated their efforts. At times they worked together on the same project or attended the same ex parte hearing.
Moreover, an attorney is not entitled to fees at professional legal rates for tasks that should be performed by staff, such as depositing checks in a bank. [Citation omitted.] The record reveals that [one of the attorneys] spent much of his time engaged in matters which could have been done by the law firm staff, such as trips to the IRS to pick up forms and trips to different banks to deposit funds.
When a probate attorney elects to base his fees primarily on the number of hours worked multiplied by an hourly rate, his fiduciary obligations dictate that he charge the estate only for those hours which are reasonably necessary in probating the estate. In defending against any objections to the fee raised by interested heirs, the estate attorney must assume the burden of proving that the hours charged to the estate were necessary. In determining a reasonable fee, the court shall assume $75 is a reasonable hourly charge for this type of work by a competent attorney…. The $75 an hour was a reasonable hourly charge, as [the attorney who did the work] had performed the majority of the work while an intern [ie, while a student in law school] and [later, following his graduation and passing the bar exam] a relatively inexperienced attorney. At pp. 520-532.
And reversed and remanded to the trial Court to determine the reasonableness of the attorney fees and the amount of fees to be awarded to the objectors.
Estate of Larson was revisited in Estate of Mathwig, 68 Wn. App. 472, (1993), rev. denied 121 Wn.2d 1030 (1993). There, the Personal Representative was an attorney who sought both Personal Representative’s fees ($16,479) and attorney’s fees ($27,593) in a Nonintervention estate inventoried at $165,000 with 95% of the estate passing to a charity. The evidence showed that the PR had expended 220 hours of work, some of which was for non-legal tasks. There was no dispute regarding either the amount of time spent or the necessity for the work, only that the PR should not be compensated at legal rates for non-legal work.
The trial Court:
Citing Larson, the Appellate Court in Mathwig affirmed the trial Court’s decision.
And now, as stated in the beginning of this webpage, back to California.
The Supreme Court of California, in Estate of Trynin, 49 Cal.3d 871, 264 Cal. Rptr. 93 (1989), held: An attorney is entitled to reasonable fees for services rendered in preparing or defending a request for probate attorney’s fees in California — the opposite as held by the Supreme Court of Washington in Larson.
Bottom-line: If you want to object to probate fees, do so in Washington, probably the state having one of the most, and perhaps the most, consumer-oriented probate laws in the nation.