Probate Appeals Attorneys Fees
An October, 2021 probate appellate opinion reminds you about probate appeals. Can you get attorneys fees for a probate appeal? Sure ! But don’t ask the appellate court. Here is your key to getting probate appeals attorneys fees in Florida. This is particularly important if you are involved in a will contest or an undue influence case.
3 Things You Need to Read
OK, so you are involved in a probate appeal. Hopefully, you had an appellate specialist at your trial. That way, you are prepared for any potential appeal. Whether you lose or win. Remember: if you WIN, the other side can appeal.
One issue that you have to consider is: are you going to file a cross-appeal? And, remember, the worst time to think about an appeal is AFTER your probate trial. You need to think about an appeal BEFORE (and at) your estate trial. But, I’m sure that your Florida probate lawyer already explained all of this to you, right?
So, you need to read three things when considering Probate Appeals Attorneys Fees.
First, read the Florida Probate Code and determine what statute you are going to seek fees under. In Florida, we follow the “American rule”. You only get attorneys fees if you have a statute or a contract. That’s right, you can’t just “ask for” fees. You need authority. [ Hint: start by reading 733.106 and 733.609 depending on your case. ]
2nd, read the Florida Rules of Appellate Procedure so you know how to handle your appeal.
Preparing for an Attorneys Fee Hearing
An attorneys fee hearing is NOT necessarily simple and straightforward for the unassuming. (It is for experienced probate litigators who handle trials and appeals. And who have actually handled fee trials. WARNING: many Florida probate lawyers will tell you that they “go to court,” but few have actually tried cases or handled “contested” fee matters. Watch out: you get what you pay for.)
Any order from a probate judge must contain findings of fact. Like what? Number of hours spent, hourly rates, and total amount in attorneys fees due.
An order on attorneys fees must be based upon competent substantial evidence.
What does that mean? It means generally that you have a min-trial on your hands. Affidavits are hearsay and generally inadmissible unless they fall within an exception. Florida’s Evidence Code Chapter 90 applies.
Argument of counsel is NEVER evidence.
Always hire a court reporter.
And, consider whether an expert witness to testify about the reasonableness of the fees is appropriate. (Even if not required).
Too time consuming and expensive? Consider an experienced probate contingency lawyer who loves what he does.
For a quick video on a petition to revoke probate appeal, click here.