PROBATE OF WILLS AND ADMINISTRATION 15-3-720
COMMENT TO OFFICIAL TEXT
This section has no bearing on the question of whether a personal representative who also serves as attorney for the estate may receive compensation in both capacities. If a will provision concerning a fee is framed as a condition on the nomination as personal representative, it could not be renounced.
15-3-720. Expenses in estate litigation. — If any personal representative or person nominated as personal representative defends or prosecutes any proceeding in good faith, whether successful or not, he is entitled to receive from the estate his necessary expenses and disbursements including reasonable attorney's fees incurred. [I. C., § 15-3-720, as added by 1971, ch. Ill, § 1, p. 233.]
JUDICIAL DECISIONS
Analysis
Attorney's fees.
Benefit for estate.
Recoverable expenses.
Attorney's Fees.
If the estate itself, as apart from the personal representative of the estate, was to be entitled to an award of attorney fees against the surviving spouse, it would be necessary for the estate to establish that the defense by the surviving spouse to an appeal from the order appointing a personal representative was being maintained frivolously, unreasonably or without foundation. Shaw v. Bowman, 101 Idaho 131, 609 P.2d 663 (1980). A personal representative who litigates his own personal interests or bequests is not entitled to attorney fees^ for such litigation from the estate under this section. Marriage v. Berriochoa, 108 Idaho 474, 700 P.2d 96 (Ct. App. 1985). Benefit for Estate. The services rendered by the personal rep- resentative, for which he seeks reimbursement, must benefit the estate and cannot be incurred to protect personal interests. Eliasen v. Fitzgerald, 105 Idaho 234,668 P.2d 110 (1983).
Recoverable Expenses.
Personal representative was entitled to recover attorney's fees incurred as result of contesting of the widow's rights to family allowance, homestead and exempt property, as well as attorney's fees incurred by the personal representative in his efforts to remain the personal representative. Eliasen v. Fitzgerald, 105 Idaho 234, 8 P2d 110 (1983).
Cited in: Kolouch v. First Sec. Bank, 128 Idaho 186, 911 P2d 779 (Ct. App. 1996).
Decisions Under Prior Law
Analysis
Attorney's fees.
Expenses in general.
Attorney's Fees.
An attorney appointed executor or administrator is not entitled to attorney fees either for himself or his law partner unless a necessity is shown for the employment of legal assistance. Needham v. Needham, 34 Idaho 193, 200 P. 346 (1921).
Fee for attorney's services is a proper charge against estate when such services are necessary. Executor must make a full and complete disclosure of extent, character, and reasonable value of such services from which court may determine proper amount to be allowed. In re Peterson's Estate, 38 Idaho
195, 220 P. 1086 (1923).
Executor or administrator will not be allowed counsel fees when incurred by such executor or administrator in prosecuting his own personal claim against the estate. In re Peterson's Estate, 38 Idaho 195, 220 P. 1086 (1923).
In an action for accounting against an ex- 15-3-721
UNIFORM PROBATE CODE