Legal Question in Wills and Trusts in California
My mother passed away in February 2009. She named her girlfriend as executor. My sister and I are the beneficiaries. My mother also left the executor $25,000 and her niece her mercedes and $25,000. My sister and I will receive what is left after legal fees, etc after the sale of her home. Once my mothers friend was made executor by the courts she left the country. Bills were not paid. The homeowners insurance had expired, my mothers mercedes no longer started since it sat for months. We hired an attorney as he told us he could have her removed as executor. Once we hired him he convinced my sister that it would take a couple of years to have her removed so we haven't. My sister is ill so I agreed with her as not to have her stressed out but I had no idea why she had changed her mind until a few days ago. In eight days my mothers estate will have the final accounting in probate court. I saw the executors final accounting. She has charged the estate for the repairs to the car, charges for my mothers cell phone, cable bill that she never had shut off. She also wants to be compensated for being executor. In which I think she doesn't deserve because of her negligence. The mistakes she made with my mothers bills should come out of her pocket. My question is. . .why didn't he explain to us that it would take a couple of years to try to have her removed before we hired him? We would not have hired if we knew that. Do we have to give him 1/3 of our mothers estate? Thank you
2 Answers from Attorneys
Ordinary compensation for an executor of an estate is set by statute as a percentage of the value of the estate. For certain actions the executor is entitled to extra compensation. An executor can be surcharged for expenses incurred by the estate that should have been avoided but for the executors mistakes; however, many wills provide that the mistakes must be either willful misconduct or gross negligence, which is difficult to prove. Bottom line, unless the errors are of significant value you could easily spend more on attorney's fees challenging the executor's conduct than you might recover.
I don't understand whether the 1/3 goes to your attorney, or to the executrix and her attorney. Mr. Feldman, is correct in that there are statutory limits on the compensation for an executor. From your post, it sounds like you entered into a contingency fee with your attorney. My first question would be the question that the State Bar asks: do you have a written retainer agreement with your attorney, and if not, why?
To answer the second question, it sounds to me like your attorney was willing to tell you what you wanted to hear, so you would retain him. Of course, the question arises as to whether you asked this question up front. I don't understand what your attorney did for a 1/3 contingency fee if all you did was receive notice of the proceedings and a distribution at the end.
Related Questions & Answers
Looking for something else?
10,200 active attorneys ready to answer your legal questions today.
Featured Attorneys
Earn additional revenue and grow your business.
