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Widow Awarded Attorney’s Fees In Action Against Estate

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MAY 20, 2002 VOLUME 9, NUMBER 47

The probate process is often viewed as unnecessarily time-consuming and expensive. Most states (Arizona included) have vastly simplified probate proceedings, but they can still seem unduly burdensome. Of course, the whole point of having a court-run probate process is to ensure that all parties’ rights and interests are adequately protected; sometimes it can be expensive to accomplish that apparently simple goal.

When Milton Hoyt died in 1994 he left a surviving spouse, Jacqueline Hoyt. He also left a son from a previous marriage, Jeffrey Hoyt. His son filed the probate proceeding and was appointed as personal representative.

In Florida, where Milton Hoyt lived and died, a surviving spouse is entitled to a small “lump-sum family allowance”—even if left out of the decedent’s will altogether. Most states require payment of a larger share of the estate to a disinherited surviving spouse, but Mrs. Hoyt was clearly entitled to the relatively modest amount of $6,000 (in Arizona, incidentally, a surviving spouse is ordinarily entitled to at least $37,000 of the deceased spouse’s estate).

Mrs. Hoyt formally filed her request for the family allowance, but her stepson refused to agree that she was owed the money. She was required to go to court to establish her entitlement; after a trial in 1997 Jeffrey Hoyt was ordered to make the payment.

Despite the clear court order, Jeffrey Hoyt did not pay Mrs. Hoyt the $6,000 she was due. Her attorney filed requests with the court twice in 1998—four years after Mr. Hoyt’s death—and Jeffrey Hoyt was finally ordered to actually make the payments to his stepmother.

After the difficulty she had experienced in getting payment of the money due her Mrs. Hoyt asked the probate court to order her husband’s estate to pay her attorney’s fees as well. Though sympathetic, the probate judge pointed out that it is the general rule in American courts that attorney’s fees can not be collected by prevailing parties without a specific statute or contractual agreement. Mrs. Hoyt’s request for attorney’s fees was denied, and she appealed the denial.

The Florida Court of Appeals took another view of the probate proceedings. A substantial body of case law allows payment from a probate estate for attorney’s fees incurred in proceedings that benefit the estate. While Mrs. Hoyt’s request for payment of her allowances did not bring new money into the estate, the appellate court decided that they benefited the estate by forcing a recalcitrant personal representative to perform his duties. To make Mrs. Hoyt pay her own attorney’s fees, the court noted, would diminish or even defeat the purpose of providing her a small statutory allowance in the first place. Hoyt v. Hoyt, May 3, 2002.

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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.