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Court Reviews Fees Charged by Fiduciary and Attorney

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There is a lot going on in Arizona with regard to the fees charged by guardians, conservators, trustees, personal representatives — and their attorneys. There has been quite a bit of controversy in news articles (particularly, but not exclusively, in the Phoenix area) and online. Professional fiduciaries have been subjected to close scrutiny, and stories have circulated about estates being emptied by legal and fiduciary fees.

Courts have reacted to the impression created by those stories. Much more attention is paid today to court proceedings seeking approval of fees, and the complexity and cost of accounting has risen. Occasionally, courts simply mandate lower fees because, well, the proposed fee seems high.

A recent Arizona Court of Appeals case indicates that probate court judges will need to be more thoughtful before imposing fee reductions. The case involves a Phoenix-area judge who ordered a 50% reduction in the fees charged by a fiduciary and its attorney.

In the Conservatorship of Helen Maxwell (not her real name), the court-appointed fiduciary had requested fees of $96,859.60 and its lawyer filed a bill for $28,501.64. Noting that the work had (“for the most part”) been “reasonable, necessary and in the best interests of” Helen, the probate judge in Phoenix nonetheless halved the fees of both applicants.

The reason? Helen’s estate was only worth about $800,000, with most of that in illiquid real estate. Helen simply could not afford the fees and costs, said the probate judge. It would not be in Helen’s best interests to approve the total amount of fees requested, “even though they were rightfully earned.”

The Court of Appeals reversed the probate judge’s ruling and sent the matter back for more consideration. Noting that they had recently given some guidance in how to judge fiduciary and legal fees, the appellate judges ordered the probate judge to weigh the costs against the benefits obtained by the fiduciary and its lawyers, and to consider a set of factors spelled out in recently-adopted court rules before ruling on the fee request.

What factors should the considered when the probate judge takes the matter up again? In addition to balancing the cost against the benefit, the court should look to:

  1. The result obtained by the fiduciary and its attorney
  2. The disclosure by the fiduciary, in advance, of the likelihood of high costs
  3. The fiduciary’s (and the attorney’s) skill and expertise
  4. The kind of work done, and the skill level required to accomplish it
  5. The actual work done, and the time spent doing it
  6. The fees charged by others in the business and in the community
  7. The risks and responsibilities undertaken by the fiduciary

In the Matter of the Conservatorship of Mallet, August 22, 2013.

It is unclear what will happen next. The fiduciary whose fees were challenged has left the business, and Helen herself died while this appeal was pending. We’ll update you if we learn of a follow-up outcome.

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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.