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Court Decides Appropriate Fee for Guardian ad Litem


A decedent was survived by his wife (a person under disability represented by a guardian ad litem), an adult son (petitioner) and four adult grandchildren and the issue of a predeceased child. Under the decedent’s will, his entire estate was left to the decedent’s lifetime trust, which in turn leaves the entire estate to petitioner, to the exclusion of the surviving spouse and grandchildren.

Subsequently, a stipulation of settlement was entered into by the parties which was then approved by the court for the best interest of all parties concerned. The approved settlement permitted the will’s admission to probate (estate litigation or will contest), effectively guarantees the surviving spouse her elective share, and distributes the net estate after payment of debts, administration expenses, and the elective share, into two parts, one part to be distributed to the petitioner and the other to be divided equally among the grandchildren.

The question now is the amount of appropriate fee for the guardian ad litem.

The responsibility for approving legal fees that are charged to an estate and the discretion to determine what constitutes reasonable compensation for legal services rendered in the course of the administration of an estate (estate administration) is left for the courts to decide, even in the event that the parties have consented to the requested fee. A New York Probate Lawyer said the attorney’s fees may be limited to reasonable amounts regardless of any agreement made by the attorney with the interested party or the existence of a retainer agreement. A retainer agreement is merely some evidence of the reasonable value of legal services. While no hard and fast rule exists to calculate reasonable compensation to an attorney in every case, the court is required to exercise his or her authority “with reason, proper discretion and not arbitrarily”. Moreover, when multiple attorneys are employed by the fiduciary of a decedent’s estate, the aggregate fee should approximate what one attorney would charge. Some overlap in services may necessarily occur and should be a factor when considering the aggregate fee. There can be some exceptions or stretching of this rule, for example, where the separate counsel does separate work, where counsel are under time pressures, or where there are complex or exceptional circumstances.

A number of factors are considered in determining the cost of legal services, to wit:

1. time spent;

2. complexity of the questions;

3. nature of the services provided;

4. the amount and complexity of litigation required;

5. the amounts involved and the benefit resulting from the execution of such services;

6. the lawyer’s experience and reputation; and

7. the customary fee charged by the Bar for similar cases.

The legal fee must bear a reasonable relationship to the size of the estate and to the interest of the ward of the guardian ad litem. Bronx Probate Lawyers said all the above-mentioned factors must be in balance and that “time spent” is the least important factor considered by the court in fixing reasonable fees.

The guardian ad litem is entitled to a fee for his or her services rendered. These factors apply equally to an attorney retained by a fiduciary or to the court-appointed guardian ad litem. The nature of the role played by the guardian ad litem is an additional consideration in determining his or her fee. Brooklyn Probate Lawyers said that normally, the fee is an administration expense of an estate and is paid from estate assets.

A sizeable estate permits adequate compensation, but nothing beyond that. A large estate does not, by itself, justify a large fee. Besides, the size of the estate can even operate as a limitation on the fees payable.

The burden on establishing the reasonable value of legal services performed rests on the attorney performing those services. Contemporaneous records of legal time spent on estate matters are important to the court in the determining whether the amount of time spent was reasonable for the various tasks performed. In the absence of contemporaneous time records, little weight is given to estimates of time after the services have been performed.

The guardian ad litem avers that he spent approximately 31 hours on the matter. His services included: interviewing the attesting witnesses to the will, one of whom was the attorney who drafted the instrument; visiting his ward; ascertaining the value of the estate and determining the value of his ward’s elective share; participating in settlement negotiations among counsel for the petitioner and the grandchildren as well as three court conferences; and preparing and filing his interim and final reports.

In view of the above, the court fixed the fee of the guardian in the sum of $7,500.00 to be paid from the spouse’s elective share.

You might be in the same situation as the abovementioned case. If so, know the proper amount of fees required to be paid. Contact Stephen Bilkis & Associates. Our Nassau County Estate Attorneys, particularly, our Nassau County Estate Litigation Attorneys possess the experience and expertise in estate administration. Be guided and ask a professional for assistance.

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