It’s always surprised me that we decided to depart from the English Rule where the losing party pays the winner’s fees, given how competitive we are as a society. For clients, the American Rule requiring each party to pay their own attorney fees, regardless of who wins a case, can make a win feel like less of a victory. That might explain why there are so many exceptions to the American Rule. This article explores the statutory exceptions to the American Rule that allow for payment of your client’s attorney fees in will contests and contested guardianships by someone other than your client.
Indiana Code § 29-1-10-13 provides for payment of a personal representative’s attorney fees in an estate administration. The “personal representative” of an estate includes an executor named in a will, as well as a special administrator. I.C. 29-1-1-3(30). Section 29-1-14-9 of the Probate Code identifies the preference for payment of claims in an estate administration, and the costs and expenses of administration are at the top of the list, before funeral expenses, claims filed by creditors of the estate and distributions to beneficiaries. It is easy to understand the policy for allowing personal representatives to pay their attorney fees with estate assets because the personal representative is responsible for carrying out the decedent’s wishes, and most individuals would decline to serve as personal representative if they had to pay for their own attorney. It is also easy to understand why a beneficiary of an estate might scrutinize the fees charged by counsel for the personal representative because those fees reduce their inheritance. While your time entries in your invoices should always be clear and complete, you should be particularly critical of invoices you issue in cases in which you intend to seek payment from estate assets, or anyone other than your client.
