Chapter 4.4 Right to Legal Fees

• Jurisdiction: Washington

§4.4 RIGHT TO LEGAL FEES

This section discusses the means whereby a beneficiary complainant may be able to recover attorney fees.

(1) TEDRA's attorney fee provisions

The first place a beneficiary should look to determine if he or she can recover fees from an estate or trust is TEDRA, Chapter 11.96A RCW. In adopting TEDRA, the legislature revised the general attorney fees provision applicable to Title 11 RCW and set out additional provisions for attorney fees and costs incurred in mediation, arbitration, litigation, and appeals. The TEDRA general attorney fees provision is set forth in RCW 11.96A.150:

(1) Either the superior court or any court on an appeal may, in its discretion, order costs, including reasonable attorneys' fees, to be awarded to any party: (a) From any party to the proceedings; (b) from the assets of the estate or trust involved in the proceedings; or (c) from any nonprobate asset that is the subject of the proceedings. The court may order the costs, including reasonable attorneys' fees, to be paid in such amount and in such manner as the court determines to be equitable. In exercising its discretion under this section, the court may consider any and all factors that it deems to be relevant and appropriate, which factors may but need not include whether the litigation benefits the estate or trust involved.

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(2) This section applies to all proceedings governed by this title, including but not limited to proceedings involving trusts, decedent's estates and properties, and guardianship matters. This section 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. This section shall apply to matters involving guardians and guardians ad litem and shall not be limited or controlled by the provisions of RCW 11.88.090(10).

In addition, any aggrieved party (a party that does not prevail at an arbitration) may appeal the arbitration decision and request a trial de novo in the superior court within 30 days of the filing of the arbitration decision. RCW 11.96A.310(9). In that case, TEDRA mandates an award of attorney fees to the prevailing party:

The prevailing party in any such de novo superior court decision after an arbitration result must be awarded costs, including expert witness fees and attorneys' fees, in connection with the judicial resolution of the matter. Such costs shall be charged against the nonprevailing parties in such amount and in such manner as the court determines to be equitable. The provisions of this subsection take precedence over the provisions of RCW 11.96A.150 or any other similar provision.

RCW 11.96A.310(10).

Further, if a party seeks and obtains an order compelling compliance with the mediation and arbitration provisions of TEDRA, that party is entitled to reimbursement of costs and attorney fees incurred in connection with the petition and any other actions taken after the issuance of the order to compel compliance, unless the court at the hearing on the petition determines otherwise for "good cause shown." The statute does not address whether a party that successfully opposes a motion to compel mediation or arbitration is entitled to fees, but the court would have the discretion to award such fees under the general fee provision, RCW 11.96A.150.

Although TEDRA expressly repealed the prior general attorney fees provision, replacing it with RCW 11.96A.150, the legislature left intact all of the other specific attorney fees provisions contained in Title 11 RCW. What follows is not a complete listing, but sets out select attorney fee provisions that may be of interest to beneficiaries.

(2) General versus specific statutory provisions

RCW 11.96A.150 expressly applies to any Title 11 RCW action. In re Guardianship of Matthews, 156 Wn.App. 201, 213, 232 P.3d 1140

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(2010). RCW 11.96A.150 provides that it "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." The comments to RCW 11.96A.030 and RCW 11.96A.150 reinforce that any other specific statute that provides for the payment of costs (which includes "attorneys' fees") does not limit the application of RCW 11.96A.150. 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. In re Estate of Kerr, 134 Wn.2d 328, 949 P.2d 810 (1998).

The other attorney fees provisions outlined here may be superfluous in light of the later-enacted general attorney fees provision in RCW 11.96A.150. For example, prior to TEDRA, the Court of Appeals held that the prior general attorney fees statute, RCW 11.96.140, did not apply to will contest proceedings. See In re Estate of Marks, 91 Wn.App. 325, 338, 957 P.2d 235, review denied, 136 Wn.2d 1031 (1998). Today, however, RCW 11.96A.150 controls in will contests because RCW 11.24.050 does not specifically provide otherwise. Mueller v. Wells, 185 Wn.2d 1, 17, 367 P.3d 580 (2016) (granting attorney fees under RCW 11.96A.150 in a will contest); see also Tunstall ex rel. Tunstall v. Bergeson, 141 Wn.2d 201, 211, 5 P.3d 691 (2000), cert. denied, 532 U.S. 920 (2001) (giving preference to a more specific and more recently enacted statute).

(3) Select specific statutes and case law on fees

This subsection sets out some specific statutes that provide for statutory attorney fees.

(a) RCW 11.48.210 —personal representatives' attorney fees

Although not directly linked to a beneficiary's attorney fees, it will be of interest to an estate beneficiary to know that attorneys representing the personal representative of an estate are to be compensated out of the estate "as the court shall deem just and reasonable." RCW 11.48.210. This provision will have the most impact on the residuary beneficiaries of an estate because it will impact the net amount available for distribution. 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. Id. The personal representative's attorney fees are considered expenses

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of administration and are given first preference for payment from the estate. RCW 11.76.110.

Practice Tip: Excessive fees in a nonintervention probate may indicate that the personal representative has failed to execute his or her trust faithfully In re Estate of Ardell, 96 Wn.App. 708, 719-20, 980 P.2d 771, review denied, 139 Wn.2d 1011 (1999) (under certain circumstances, e.g., mismanagement

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