Contingency fee arrangements in probate are rare for me. Typically, attorney’s fees are paid in one of two ways: either statutory fees or extraordinary fees. Contingency fee arrangements may come up when statutory fees or extraordinary fees may not apply to a situation.
Recently, a new client told me that he was the heir of a California estate of a person who died without a will (intestate). As my new client was about to receive his distribution from the probate estate, another person made a claim stating that he instead was the sole heir. That claimant filed an objection to the proposed distribution arguing that he had a higher priority to claim the entire estate under the rules of intestate succession than my client had. He argued that since my client was adopted when he was a child, he was no longer related to the decedent and therefore lost his priority as an heir. My client argued that although he was adopted, his relationship with the decedent was not severed because he was the decedent’s sibling and the rules of adoption sever a relationship only as between a parent and a child.
In a situation like this where the California probate attorney is not handling the actual probate and is instead representing an heir, beneficiary or creditor, a contingency fee arrangement may work.
The way the contingency fee arrangement worked in this case was that if the heir received nothing from the estate, then I would earn nothing and he would not have spent any money to get the benefit of my services. As the attorney for the heir, I was not handling a probate case subject to the fee provisions contained in the California Probate Code. The California Probate Code sections regarding statutory and extraordinary fees applied only to the other attorney who was engaged to deal with the probate. That meant I was free to take the matter on a contingency basis to be paid from the amount the heir actually received at the end of the probate.
This was a matter ripe for mediation and negotiations to arrive at a fair settlement. In that way, both sides avoided the expense, aggravation and time that litigation and a trial would involve. As a result of working on behalf of my client, I successfully argued against the other heir’s attorney that he get 100% and instead the estate was split in a way that satisfied my client.
There may still be upfront costs/fees that have to be paid even if the case is a contingency matter. There are court filing fees and fees that are payable by outside vendors whose services are required by the court (such as a probate referee or the issuance of a bond). Contingency fee arrangements only spare you the cost of paying your attorney up front. You can retain a lawyer on a contingency basis under the right circumstances.
BOTTOM LINE: Your California probate case may be a good fit for a contingency fee arrangement. Call Mitchell A. Port at 310.935.0572 to discuss it.