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Court Can Order Reduction Of Personal Representative’s Fees

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MARCH 12, 2001 VOLUME 8, NUMBER 37

In 1966 Norman Dacy published his now-famous book “How to Avoid Probate.” Dacy’s book made several claims that have since become practically articles of faith: probate is always too expensive, takes too long and requires disclosure of too much information.

The cost of probate has been reduced in most cases since Dacy’s book first appeared. About half of the states still permit executors (often called “personal representatives”) and their lawyers to charge a percentage of the estate’s value as fees. The growing trend, however, is to require the fees of both the personal representative and his or her attorney to be “reasonable.” That usually translates into a much lower fee than the percentage arrangement.

That is not always the case. Robert Sweetland’s estate in the Maine courts illustrates both how fees can consume a large portion of the estate and how courts can stop abuses by personal representatives and attorneys.

Mr. Sweetland had named a Massachusetts friend, Irene Mailhiot, as personal represenative, and the probate court appointed her as the will directed. Ms. Mailhiot then charged the estate fees of $36,000 and travel and other expenses of over $14,000. Since the estate was modest, Ms. Mailhiot collected fees and costs of almost 20% of the estate.

Mr. Sweetland’s will divided his estate among six charities. Ms. Mailhiot sent a form to each beneficiary for signature approving payment of her fees and costs before they would receive any distribution. Five of the six beneficiaries signed and returned forms, but the Maine State Society for the Protection of Animals refused. The Society was entitled to 10% of Mr. Sweetland’s estate, and it decided to challenge the fees.

After a hearing, the probate judge agreed with the Society. The judge noted that Ms. Mailhiot had routinely charged the estate for lunches and dinners at fancy restaurants, and claimed 56 trips to Maine to settle estate business. Her fees were reduced to $10,000 and her costs to $3,000; she was also charged with $4,700 in fees paid by the Society to protect its interests. In total, she was ordered to return more than $40,000 of the $50,000 she had charged the estate.

Ms. Mailhiot appealed the probate judge’s ruling, and made a novel argument. Because five of the six charities had signed waivers of any claims against her before the Society filed its objection, she argued that she should only be required to repay the Society’s share of the $40,000 judgment. In other words, she sought to reduce her repayment to $4,000.

The Maine Supreme Court scoffed at Ms. Mailhiot’s suggestion. She was ordered to repay the entire amount of overcharges to the estate, and was charged additional attorneys’ fees for her appeal. Estate of Sweetland, January 30, 2001.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.