Chapter 13.10 Other Selected Attorney Fees and Costs Statutes in Title 11 RCW

• Jurisdiction: Washington

§13.10 OTHER SELECTED ATTORNEY FEES AND COSTS STATUTES IN TITLE 11 RCW

Title 11 RCW contains attorney fees provisions in addition to RCW 11.96A.150. This section does not contain a complete listing of attorney fees provisions, but rather a discussion of selected attorney fees provisions frequently applicable in trust and estate disputes and how they apply.

(1) General versus specific statutory attorney fees provisions

RCW 11.96A.150 expressly applies to all proceedings governed by Title 11 RCW, and "shall not be construed as being limited by any other specific statutory provision providing for the payment of costs, including RCW 11.68.070 and 11.24.050, unless such statute specifically provides otherwise." RCW 11.96A.150(2). The comments to RCW 11.96A.030(1)

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and 11.96A.150 reinforce the interpretation that any other specific statute that provides for the payment of costs (presumably including attorney fees as well) does not limit the application of the general fees statute. See Comments to TEDRA §308, at 6. The only provision that specifically provides otherwise is RCW 11.96A.310(10), which makes mandatory an award of attorney fees and costs to the prevailing party in any appeal from an arbitration decision. See generally In re Estate of Kerr, 134 Wn.2d 328, 949 P.2d 810 (1998); In re Guardianship of Nicholson, 101 Wn.App. 1057, No. 18518-4-III, 2000 WL 1022869 (July 25, 2000) (unpublished). See also §13.8(2), above.

Practice Tip: In light of RCW 11.96A.150, the statutes discussed in this section may be nonessential. Nevertheless, they should be included in a petition for an award of attorney fees, when applicable, as a way to bolster the argument in favor of such an award.

(2) RCW 11.48.210

Attorneys representing the personal representative of an estate subject to court supervision are to be compensated out of the estate "as the court shall deem just and reasonable," RCW 11.48.210; In re Estate of Henington, 182 Wn.App. 534, 540, 331 P.3d 112 (2014), review denied, 182 Wn.2d 1005 (2015); In re Estate of Mathwig, 68 Wn.App. 472, 476, 843 P.2d 112, review denied, 121 Wn.2d 1030 (1993). The attorneys' compensation may be allowed at the final accounting or at any time during administration, upon application by the personal representative or the attorneys. RCW 11.48.210. Moreover, fees for the personal representative's attorneys are considered expenses of administration and are given first preference for payment from the estate. RCW 11.76.110. Likewise, the fees for attorneys representing a "notice agent" administering those assets are given first preference for payment from the nonprobate assets. RCW 11.42.090(2)(a).

In probate, the attorney-client relationship exists between the attorney and the personal representative of the estate; the personal representative employs an attorney to assist him in proper administration of the estate. In re Estate of Larson, 103 Wn.2d 517, 521, 694 P.2d 1051 (1985). However, the personal representative is individually liable to his or her attorneys for all services rendered, whether properly chargeable against the estate or not. In re Estate of Kleinlein, 59 Wn.2d 111, 116, 366 P.2d 186 (1961); In re Estate of Peterson, 12 Wn.2d 686, 731, 123 P.2d 733 (1942). See also §13.9(2)(m), above.

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RCW 11.48.210 does not apply to nonintervention estates. See In re Estate of Aaberg, 25 Wn.App. 336, 344, 607 P.2d 1227 (1980). However, attorney fees paid in a nonintervention probate may be reviewed upon application to the court by any authorized person. RCW 11.68.070,. 110-.114; In re Estate of Coates, 55 Wn.2d 250, 256-60, 347 P.2d 875 (1959) (requiring clear, cogent, and convincing evidence of attorney's "lack of faithfulness"); Estate of Aaberg, 25 Wn.App. at 341. Excessive fees in a nonintervention probate may indicate that the personal representative has failed to execute his or her trust faithfully. Estate of Coates, 55 Wn.2d at 259; In re Estate of Ardell, 96 Wn.App. 708, 719-20, 980 P.2d 771, review denied, 139 Wn.2d 1011 (1999) (the court found the personal representative's attorney fees "shocking" and requested testimony of the attorneys justifying their fees). When the court finds that the personal representative has failed to discharge his or her duties, it may deny or reduce the fees or compensation otherwise allowed. Estate of Wegner v. Tesche, 157 Wn.App. 554, 565, 237 P.3d 387 (2010) (when personal representative left interior and exterior of decedent's house strewn with garbage and possessions, court reduced the personal representative's expenses and fees to half of the amount requested).

(3) Attorney fees in will contests—RCW 11.24.050

If the probate of a will is revoked or the will annulled...