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Probate Fee Agreement Illinois

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					                               Contents


   1   Ethics Issues Arising in Fee Agreements                1
           Sylvia E. Stevens

   2   Billing Costs                                          9
            Thomas A. Balmer
            Sara L. Tait

   3   The Truth in Lending Act and Attorney Fee Retainers   27
           Richard A. Slottee

   4   OSB Fee Arbitration Program                           49
          Sylvia E. Stevens

   5   Drafting Tips for Fee Agreements                      55
           Barbara S. Fishleder

   6   Retained or Not Retained—You May Need to Prove It     59
           Barbara S. Fishleder

   7   IOLTA in Relation to Fee Agreements                   83
           John Paul Graff

   8   Contingent Fee Agreement                              87
           Daniel F. Kellington

   9   Hourly Fee Agreement                                  93
          John E. Pollino

 10    Limited Representation Fee Agreement                  99
           Russell Lipetzky

 11    Fixed-Fee Agreement                                   105
           Bradley F. Tellam

 12    Referral Agreement Between Lawyers                    111
           Michael A. Greene




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                                                 CONTENTS (CONTINUED)



13   Domestic Relations Fee Agreement                             119
        Paul J. DeBast

14   Independent Adoption Fee Agreement                          137
         Sandra L. Hodgson

15   Probate Fee Agreement                                       147
         Penny Serrurier

16   Criminal Law Fee Agreement                                  157
         Paul Ferder

17   Incorporation Fee Agreement                                 165
         Roland A. Johnson

18   Workers’ Compensation Fee Agreement                         171
        David W. Hittle

19   Social Security Fee Agreement                               177
         David W. Hittle

20   Third-Party Personal Injury Fee Agreement                   181
         David W. Hittle

21   Bankruptcy Fee Agreement                                    185
         Kent V. Snyder




                                                                   ix
CHAPTER 15
Probate Fee Agreement
Penny Serrurier*



      Lawyers should be aware that, in formal probate, receipt of
attorney fees without court approval is considered the collection of an
illegal fee and is unethical under DR 2-106(A). In re Altstatt, 321 Or
324, 333, 897 P2d 1164 (1995). A personal representative may petition
the court, however, for an order allowing a partial payment of
attorney fees before the estate is settled. OSB Legal Ethics Op No 1991-
63.
      The personal representative is allowed reasonable attorney fees
in the settlement of his or her final account. ORS 116.183. The probate
court must review and approve all attorney fees incurred in a probate
matter. Court approval is based on the following factors:
•     customary fees in the community for similar services;
•     time spent by counsel;
•     counsel’s experience in such matters;
•     skill displayed by counsel;
•     excellence of the result obtained;
•     the terms of any fee agreement between the personal
      representative and his or her counsel;
•     responsibility assumed by counsel considering the total value of
      the estate; and
•     other relevant factors. See ORS 116.183(1).




Penny Serrurier, B.A. (cum laude), Middlebury College (1986); J.D. (cum laude),
Cornell University (1991); member of the Oregon State Bar since 1991;
partner, Stoel Rives LLP, Portland.
*The author gratefully acknowledges Donald K. Denman, who wrote the
prior edition of this chapter.

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CHAPTER 15 / PROBATE FEE AGREEMENT



      Thus, an agreement between the lawyer and the personal
representative is not conclusive regarding the fee that the lawyer may
charge in the probate of the estate. Moreover, attorney fees requested
under ORS 116.183 must be supported by an affidavit detailing the
services performed and why the amount requested is appropriate,
taking into consideration all the factors set forth in ORS 116.183. UTCR
9.090(2).
      A fee collected in a probate matter cannot be excessive.
DR 2-106(B); In re Stauffer, 327 Or 44, 64–65, 956 P2d 967 (1998) (lawyer
billed estate $101,967; initial value of estate was $132,000). Excessive
fees should not be a problem in a formal probate when the fee is
approved by the probate court. For a small estate, however, when
payment of the fee is not subject to court approval, the amount of the
fee should be carefully established to avoid a challenge that it is
excessive and unethical. See, e.g., OSB Legal Ethics Op No 1991-98.
      The sample engagement letters included in this chapter explain
the work that the lawyer expects to do in performing his or her
services in probating the estate and set forth the hourly rates charged.
There are two sample forms for a probate estate (the first in letter form
and the second in memo form to be signed and returned by the client).
There is also a sample fee agreement for matters involving a small-
estate affidavit.
           PRACTICE TIP:    When the work performed is well
      documented and the client understands the billing, court
      approval of attorney fees at the conclusion of a probate is
      usually a speedy and uncomplicated matter.




148
                                      PROBATE FEE AGREEMENT / CHAPTER 15



                ENGAGEMENT LETTER—PROBATE

                                 [Date]

[address]

     Re:    Estate of __________, Deceased

Dear __________:

      Thank you [again] for selecting us to represent you in your
capacity as personal representative for [your _________’s estate/the
estate of _______________]. This letter summarizes your duties as
personal representative and explains the basis on which we have
agreed to represent you.

      [Insert description of probate process and duties of personal
representative]

Personal Representative’s Fee
       Oregon law provides a statutory fee for your services as a
personal representative. This fee is computed on the value of the
property of the estate subject to the jurisdiction of the court, including
income and realized gains. The amount of the fee is $1,630 on the first
$50,000 of value, plus 2% of the value that exceeds $50,000. There is an
additional 1% fee for assets not included in the probate estate but
reportable for federal estate tax purposes, excluding the proceeds of
life insurance policies. [OPTION: The amount of the fee is taxable
income to you and is deductible by the estate for either income tax or
estate tax purposes. Because you will be receiving distribution of a
substantial portion of the estate, we should discuss whether it would
be better from a tax standpoint for you to waive the fee.]

Attorney Fees and Expenses
     There is no statutory fee for lawyers. Under Oregon law, the fee
for our services is based on the reasonable value of the work we
perform for you. The fee must be approved by the court before you
are authorized to pay it. In determining a reasonable fee, the court is
guided by the statute that provides, among other things, that the fee


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CHAPTER 15 / PROBATE FEE AGREEMENT



must be comparable to fees customarily charged for similar services
rendered in the community and must take into account the amount of
time required in rendering these services, our experience in dealing
with the kinds of issues that may arise, and any agreement regarding
fees that we may have with you. Additional factors may include the
amount of responsibility that we assume, considering the total value
of the estate and any other relevant factors. We have agreed that we
will bill you for our services on an hourly basis. My current guideline
hourly rate is $________, and my current specialist hourly rate is
$________. The current guideline hourly rate for the paralegal who
will be working with me on the estate is $________, and [his/her]
specialist hourly rate is $________. These rates are reviewed and may
be adjusted at least once a year. We will bill the estate for our legal
services after the Final Account has been filed and the court has
approved the requested fee.




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