Probate Court Has Jurisdiction to Review Attorney Fees | Burden of Proof on Attorney

If an attorney for a personal representative of an estate charges allegedly excessive fees, the probate court has the jurisdiction to review the propriety of such fees, and the burden of proof is on the attorney to establish that such fees are reasonable.  The probate court may review attorney fees even if paid from nonprobate assets. 

In Faulkner, (2nd DCA 2015), a probate estate was opened with under $5,000 in personal property and a homestead residence.  The attorney for the personal representative charged $39,869 in attorney fees for work performed in the “uncontested” proceeding.  The personal representative of the estate, Mr. Faulkner, filed a petition to review the compensation of his attorney in his capacity as an interested person and as personal representative.  The probate court dismissed the petition on the grounds that: 

1. Mr. Faulkner was required to interplead himself into the proceedings as a respondent in the matter, even though he was the petitioner; and
2. The probate court was not the proper venue to determine the reasonableness of attorney fees; instead a suit for unjust enrichment or a proceeding before the Florida Bar was required.

The law firm also argued that the probate court could not determine whether its fees were reasonable, because the fees were paid from the proceeds of the sale of homestead property, and homestead property is excluded from the value of an estate in probate court, citing to Section 732.402 of the Florida Probate Code. Therefore, the probate court did not have jurisdiction to review the reasonableness of its fees and the dispute must be heard in the civil division of the circuit court. 

The appellate court made quick work of these positions.

1. The personal representative has the same right to have the probate court review compensation paid to the estate’s attorney.  Requiring the personal representative to interplead himself or herself was therefore not required.
2. The appellate court stated that there may be some ambiguity as to who has the burden of proof to establish the reasonableness of attorney fees charged to an estate. After reviewing the legislative history the court held that it appears that the legislature intended that the party seeking fees would bear the burden of establishing the reasonableness of such fees.  Otherwise, a personal representative could never petition a court to review the reasonableness of attorney’s fees in probate proceedings.
3. The probate court has the exclusive jurisdiction to determine compensation paid to the attorney for the estate.  Citing to the earlier case of Bookman v. Davidson, 136 So.3d 1276 (Fla. 1st DCA 2014) Section 733.6175(2), Florida Statutes, provides that “[c]ourt proceedings to determine the reasonable compensation of the personal representative or any person employed by the personal representative, if required, are a part of the estate administrative proceedings. . . .” (Emphasis added.) Accordingly, it has been held that “the Florida probate court has exclusive jurisdiction [over the matter of compensation] and is obligated to review estate fees upon the petition of a proper party.” In re Winston, 610 So. 2d 1323, 1325 (Fla. 4th DCA 1992).
4. That the estate attorney was paid from a nonprobate asset was no barrier to the review of attorney fees paid to the probate attorney; indeed, the law firm’s argument that the probate court could not review its fees was “meritless.”   In citing to the earlier case of Richardson v. Jones, 508 So.2d 739 (Fla. 2d DCA 1987) the appellate court explained as follows:  In Richardson v. Jones, 508 So. 2d 739, 740 (Fla. 2d DCA 1987), the attorney argued that the probate court did not have the authority to order him to reimburse the estate for excessive fees, because the attorney had been paid personally by the personal representative of the estate and not from the estate assets. This court held, “We find this argument to be without merit. The court’s order simply carries out its obligation to review and determine the reasonableness of compensation to be paid to an attorney for a personal representative.” Id. The fact that an attorney may be paid from sources separate from the estate does not divest the probate court of its authority to determine whether the fees charged are reasonable. See Morrison v. Estate of DeMarco, 833 So. 2d 180, 182 (Fla. 4th DCA 2002) (holding that probate court had jurisdiction to order attorney to account for money she received from the sale of condominium that was homestead property, a nonprobate asset).

Appellate court opinions do not always set forth all of the underlying facts in a case.  It is difficult to determine how attorney fees could have been charged of almost $40,000 on an estate with less than $5,000 in personal property.  If the attorney fees were charged on the value of the homestead property (which is not a probate asset under Florida’s quirky rules), most commentators believe such is improper.  If the attorney fees were charged on an hourly basis for dealing with the homestead property, such could be appropriate depending on the circumstances, even though the appellate court described the estate as uncontested.