A probate court may use its discretion in awarding fees to an attorney who served as both the executor and the attorney for an estate, and need not be bound by a local rule that sets a standard of one-half of attorney fees if the attorney receives the full executor fee. In Re: Estate of Rothert (Ohio Ct. App., 1st, No. C-010604, May 3, 2002).
Mary Rothert, who had no known surviving next of kin, bequeathed specific amounts to two of her friends and left the remainder of her estate in equal shares to three charities. Joseph C. Kammer acted as both executor and attorney for Ms. Rothert's estate. Mr. Kammer applied for executor fees, attorney fees, and extraordinary executor fees. All of the beneficiaries agreed to the fees requested. The probate court awarded Mr. Kammer the statutory executor fees and extraordinary fees, but only one-half of the requested attorney fees. The court based its decision on a local rule stating that when an attorney acts as both the executor and the attorney for an estate, the attorney is entitled to only one-half of his attorney fees if he receives the full executor fee. Mr. Kammer asserted that the trial court erred in arbitrarily applying this local fee guideline.
The Court of Appeals of Ohio, First District, agrees with Mr. Kammer and reverses. The court rules that the local rule is discretionary and that Ohio Rev. Code 2113.36 permits probate courts to use their discretion in paying reasonable attorney fees for services rendered in the administration of an estate. The court concludes that 'discretion cannot effectively be exercised solely by the application of a predetermined formula.' The court remands the case for a hearing to determine the reasonableness of the attorney fees based on the value of the services rendered and not solely upon the formula provided in the local rule.
To download the full text of this opinion, go to https://www.hamilton-co.org/appealscourt/decisions_date.html and search for case number C-010604.
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