Estate of Heck

California Court of Appeal May 6, 1958 No. Civ. No. 5662Published

Before: Mussell

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Holding. The court held that executor commissions and attorney fees must be calculated based on the statutory rates in effect at the time of the final accounting, with prior payments treated as advances against the total fee.

Issues

Whether executor commissions and attorney fees should be calculated based on the statutory rates in effect at the time of the final accounting or the rates in effect when services were rendered.
Whether prior allowances of fees constitute final determinations or advances against the total compensation due at the final accounting.

Disposition. reversed

Quotations verified verbatim against the opinion

“any compensation granted before the final accounting is merely an advance allowance toward the full fee allowable, which can be determined only at the final accounting.”

160 Cal.App.2d 162 (1958) Estate of FANNIE M. HECK, Deceased. SIDNEY J. W. SHARP, Individually and as Executor, Appellant,

HATTIE J. LANE, Respondent.

Civ. No. 5662. California Court of Appeals. Fourth Dist.

May 6, 1958. Herbert M. Braden for Appellant.

Kimble, Thomas, Snell and Jamison & Russell for Respondent.

MUSSELL, J.

Fannie M. Heck died testate in 1952 and her will was admitted to probate on September 30, 1952. At that time section 901 of the Probate Code read in part as follows:

"The executor, when no compensation is provided by the will or he renounces all claim thereto, or the administrator, shall receive commissions upon the amount of estate accounted for by him, as follows: For the first thousand dollars, at the rate of seven per cent; for the next nine thousand dollars, at the rate of four per cent; for the next ten thousand dollars, at the rate of three per cent; for the next thirty thousand dollars, at the rate of two per cent; and for all above fifty thousand dollars, at the rate of one per cent."

By an amendment to section 901 of the Probate Code, effective September 7, 1955, the fee schedule was increased as follows:

Tabular Material Omitted

Section 910 of the Probate Code reads as follows:

"Attorneys for executors and administrators shall be allowed out of the estate, as fees for conducting the ordinary probate proceedings, the same amounts as are allowed by the previous article as commissions to executors and administrators; and such further amount as the court may deem just and reasonable for extraordinary services."

The executor filed three accounts current prior to September 7, 1955, the date the amendment to section 901 of the Probate Code became effective. On July 8, 1954, the court [164] made an order approving the second account current of the executor and allowing him the sum of $1,580.71 for ordinary services rendered, and the same amount was allowed for attorney's fees. These sums were paid on July 8, 1954. On July 1, 1955, the executor filed his third account current and the further sum of $1,500 was allowed paid to him and a like amount was allowed and paid as attorney's fees for ordinary services.

Estate of Heck

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MUSSELL, J.

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