Part III - Executor May Be Awarded Attorney Fees and Costs if Participating "As A Party to Assist the Court"

Continuing from our previous blog on the Estate of Hans Barsch (193 Cal. App. 4th 885 – Cal: Court of Appeal, 1st Appellate Dist., 1st Div, 2011), Norman Bartsch Herterich (Objector and appellant) appealed the probate court's ruling granting Ardnt Peltner's (petitioner and respondent) petition for an interim payment of attorney fees and expenses. Norman argued that Peltner was also a beneficiary of the estate and therefore is not an impartial personal representative.

The Court of Appeal disagreed with the appellant stating that "Had the Legislature desired to limit the class of personal representatives subject to Probate Code section 11704, subdivision (b), to those having no interest in the estate as a beneficiary, or to limit the section's application to cases in which there are no other beneficiaries or heirs available to defend a petition, such intent could have been stated explicitly." The Court further added that they deem it fair that the estate bear the costs of defending the heirship petition as Norman has not yet established his right to the decedent's estate and Peltner is the only person representing the interests of the many beneficiaries who are named in the will and is the sole advocate acting on their behalf. The unfairness in requiring Peltner to finance this defense in his own when so many others stand to benefit from his efforts outweighs any perceived unfairness to objector. Accordingly, the Court of Appeal affirmed the probate court's order.

*This blog entry was not written by an Attorney and should not be construed as professional legal advice.

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