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Attorney’s fee as obligation of representative or estate

Subject to certain exceptions, contracts of an executor or administrator, regardless if made for the benefit of the estate, are the personal contracts of the representative and do not bind the estate.

Subject to certain exceptions, the contracts of an executor or administrator that are made with new and independent consideration are the personal contracts of the executor or administrator and do not bind the estate. CJS EXECUTORS § 279.

This stems from the theory that the personal representative ordinarily cannot make any agreement enlarging the liability of the estate. If a contract that the administrator or executor is a contract that such person had no right to make, all the contracting person who must respond for it and not the estate. The fact that the promise is expressed to be “as executor” or “as administrator” does not change such person’s individual liability regarding it. Moss v. Boyle, 44 Cal. App. 2d 410, 112 P.2d 657 (2d Dist. 1941).

This application of the law extends to third parties dealing with executors or administrators. These third parties are charged with knowledge of the limitations placed by law on the powers of executors and administrators and any contract executed by and between such third party and an executor or administrator is subject to such legal limitations. It is well established that, primarily, an estate representative personally, and not the estate he represents, is generally liable for all contracts made by him in the execution of his trust. A debt contracted by him after the death of the decedent will bind him individually even though it was contracted for the benefit of the estate.

In California, attorney compensation for services rendered to the personal representative of a probate estate is not paid by the personal representative, but out of the estate itself. In re Estate of Wong, 207 Cal. App. 4th 366, 143 Cal. Rptr. 3d 342 (1st Dist. 2012), review denied, (Sept. 12, 2012). Irrespective of this ruling, personal representatives, administrators and executors alike should understand that they are still liable for their contracts to the extent the estate is not charged to pay fees.

Accordingly, in the absence of some special agreement between them to the contrary, or a statute making some contrary provision, an executor, administrator, or trustee who retains counsel to aid him in the administration of the estate becomes personally obligated in his individual, and not his representative, capacity to pay for the legal services, even though the services performed were solely for the benefit of the administration of the estate.

An executor or administrator is only relieved from personal liability for attorney’s fees for

services rendered to the estate if the expenditure is found by the court to have been necessary and proper in the interests of the estate. In the case of Miller v. Campbell, Wharburton, Fitzsimmons, Smith, Mendel & Pastore, 162 Cal. App. 4th 1331, 76 Cal.Rptr. 3d 649 (6th Dist. 2008), a law firm’s claim, which had been barred by the probate court as being recoverable against the estate, was not barred against the executor personally. The probate court expressly found that the disputed fees were not expenses of the estate but rather had been for services rendered to the executor personally, and thus recoverable, nonetheless.

Personal representatives should be very careful when considering a probate attorney and clarify whether fees charged by the attorney would be chargeable against the personal representative if the probate court finds the fees to not be recoverable against the estate. It is important for interested persons looking to become an executor or administrator of an estate to make their own determinations of the trustworthiness and nature of the probate attorney prior to retaining.


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