Friday, August 26, 2011
The trial court removed Independent Executor (IE) from office after Beneficiaries proved that IE breached his fiduciary duties. Beneficiaries then obtained a judgment awarding them the attorneys’ fees they incurred in having IE removed. IE appealed.
The appellate court affirmed. IE claimed that only an estate is entitled to reimbursement of attorneys’ fees, not the beneficiaries directly. The court rejected this argument pointing to Probate Code § 245 which authorizes the court to award reasonable attorneys’ fees against the executor who is removed from office. The statute is silent with respect to the entity entitled to recover the fees and thus the statute does not limit recover of attorneys’ fees to the estate.
The court also rejected IE’s claim that the award of fees was improper because Beneficiaries did not segregate recoverable fees from nonrecoverable fees. The court determined that the work the attorneys’ performed with respect to the removal action was inextricably intertwined with Beneficiaries’ other causes of action against the IE so that the general duty to segregate did not apply.
Moral: A beneficiary who is successful in removing a personal representative from office is entitled to recover reasonable attorneys’ fees which the beneficiary pays out of his or her own pocket.