Attorney’s Fees in Dallas County Probate Courts
by Barkley T. Miller and J. Ellen Bennett
“A lawyer’s time and advice are his stock in trade.” As Abraham Lincoln, who gave attorneys of his day this sage counsel, knew, time and advice form the basis of compensation for legal services. We shall share with you aspects of Texas law, procedural standards of the three Dallas County Probate Courts, and some pitfalls to avoid along the road to obtaining your compensation in Dallas County probate and guardianship cases.
Texas Probate Code Section 242 entitles personal representatives of estates to “all reasonable attorney’s fees, necessarily incurred,” on “satisfactory proof to the court.” Sections 665 and 665A-D set forth the standards for reasonable compensation in guardianship cases. In weighing the reasonableness of fees, our Probate Courts consider factors described in Texas Rules of Professional Conduct Rule 1.04, including the time and labor involved in the case, difficulty or novelty of the work performed and customary hourly rate of attorneys with similar education and skills performing similar services.
When a Dallas County Probate Court must approve your fees, the attorney filing the petition bears the burden of proving the reasonableness of professional compensation. Our Probate Courts have formulated standards to assist attorneys in this process, which can be found in the “Guidelines for Court Approval of Attorney Fee Petitions” (Guidelines) located in Appendix “A” to the Dallas County Probate Practice Manual (available for purchase from the DBA’s Probate, Trusts and Estates Section). Three noteworthy components of the Guidelines stand out for our purposes: the rate of compensation for attorneys and staff, what events are billable and how attorneys are compensated.
The Guidelines specify particular rates at which attorneys practicing before Dallas County Probate Courts may be compensated. If you represent a fiduciary or serve as an attorney ad litem or guardian ad litem, the Guidelines stipulate that your fees are based upon your years practicing probate and guardianship law and whether you have earned Board Certification in Probate and Estate Planning.
Further, if you are acting as a fiduciary, the Guidelines set forth differing rates of compensation for fiduciary work and legal work. The attorney in such cases must file a Notice of Intention to Request Dual Compensation and submit detailed records of all time expenditures for both types of work.
Finally, fees for paralegals and legal assistants are reimbursable at a set rate, depending on factors such as certifications; experience in probate, estate planning and guardianship; and CLE courses attended.
Two potential pitfalls merit discussion as you determine what billable events to include on fee statements. First, if an attorney ad litem is appointed for an indigent party, the attorney’s fee is set at the county-pay rate, which varies based on the experience of the ad litem and the complexity of the case. Because certain ad litem expenses may not be reimbursable in county-pay cases, a prudent practitioner should check with the Probate Court’s administrative assistant before incurring large expenses.
Second, you cannot charge for basic legal research, fee petition preparation, conversations with the Probate Courts and their staffs (unless special circumstances exist), photocopies exceeding $.20 per page, or fax charges.
Once you have determined the appropriate rate of compensation and billable events, you must draft and file your fee application. To facilitate review of fee applications, our Probate Courts require the filing of statements wherein attorneys itemize a description of the service performed, the time spent on each service and the corresponding charge.
For fees between $1,000 and $2,500, the requesting attorney must sign and file a supporting fee affidavit. If the fee exceeds $2,500, the requesting attorney must not only sign and file an affidavit, but also file supporting fee affidavits signed by two attorneys not in the applicant attorney’s firm. In decedent’s estates, a fee application must be signed by the attorney and by the personal representative of the estate.
Mr. Lincoln’s advice holds true today: time and advice form the basis of compensation for your legal services. Billing based upon a working knowledge of Texas statutes and the Guidelines will ensure that you are compensated for your stock in trade in Dallas County probate and guardianship matters.