Massachusetts General Laws

Mass. Gen. Laws ch. 215, § 39A (2026)

Attorneys' fees; power of court to determine

✓ current as of July 2026

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Section 39A. At any time during the administration of an estate, and irrespective of the pendency of a particular proceeding, the probate court shall have power to hear an application for, and fix and determine, the compensation and expenses of an attorney for services rendered to the estate or to its representative or to a devisee, legatee, distributee or any other person interested therein.

Such application shall be instituted by a petition, upon a form provided by the court. Notice of the application shall be given in such manner as the court shall direct. In the event that the court shall determine that any sum or sums is or are due to the petitioner or to any other party interested in the application, the compensation shall be awarded on an equitable basis in accordance with the size, importance, complexity and difficulty of the matters involved and the time spent thereon. The court may direct payment thereof from the estate generally or from funds in the hands of the representative of the estate and belonging to any legatee, devisee, distributee or other person interested therein.

In the event that the court shall determine that any such attorney has already received or been paid a sum in excess of the fair value of his services on such equitable basis, as thus determined, the court shall have power to direct him to refund such excess.

For the purposes of this section, the term ''estate'' shall be deemed to include trusts, guardianships, conservatorships and all other relationships involving the administration of property by fiduciaries.

Notes of Decisions

Cited in 21 cases (1 in the last 5 years), 1959–2023 · leading case: Kunen v. First Agric. Nat'l Bank, 382 N.E.2d 750 (Mass. App. Ct. 1978).

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Kunen v. First Agric. Nat'l Bank, 382 N.E.2d 750 (Mass. App. Ct. 1978). · cites it 2× “G. L. c. 215, § 39A. The only contention of any substance is that the evidence before the Probate Court did not warrant such an award as the one made.”

Rood v. Newberg, 718 N.E.2d 886 (Mass. App. Ct. 1999). “Although the award of counsel fees is left to the discretion of the Probate Court, see G. L. c. 215, §§ 39A, 39B; Markell v. Sidney B.”

Mahoney v. Mahoney, 370 N.E.2d 1011 (Mass. App. Ct. 1977). · cites it 2× “G.L.c. 215, § 39A. Compare Brayton v. Stoughton, 335 Mass.”

Chase v. Pevear, 419 N.E.2d 1358 (Mass. 1981). “He denied in its entirety the trustee’s application for payment *371 out of the trust of more than $200,000 in counsel fees and expenses, on the grounds that the litigation was necessitated by the trustee’s breach of duty and that the trustee’s conduct had not benefited the…”

Perry v. Perry, 160 N.E.2d 97 (Mass. 1959). · cites it 2× “It is not unreasonable that in large part the cost of the defence be borne by the trust, the only assets of which are shares of stock of the corporation. But some of the expense of defence is properly to be borne by the corporation directly, for it was a party sought to be…”

Mazzola v. Myers, 296 N.E.2d 481 (Mass. 1973). “The matters of compensation and expenses of counsel may be determined by the Probate Court upon application under G. L. c. 215, § 39A. A final decree is to be entered in conformity with this opinion.”

In the Matter of the Est. of Rosen, 23 N.E.3d 116 (Mass. App. Ct. 2014). “We conclude that the amount of the attorney’s fees in this complex case involving a $4 million estate, a seven-day trial in the Probate and Family Court, and a separate equity action were well justified *801 in the probate judge’s rationale. 13 A probate judge has broad…”

Paone v. Gerrig, 291 N.E.2d 426 (Mass. 1973). “See also G. L. c. 215, § 39A, and Condon v. Haitsma, 325 Mass.”

Brady v. Citizens Union Sav. Bank, 38 N.E.3d 301 (Mass. App. Ct. 2015). “206, § 16; G. L. c. 215, § 39A; and Condon v. Haitsma, 325 Mass.”

United Tool & Indus. Supply Co. v. Torrisi, 268 N.E.2d 837 (Mass. 1971). “215, § 45, is to be construed with the provisions of G. L. c. 215, §§ 39A and 39B. The decree of the Probate Court shall be modified to omit the award of the respondents’ counsel fees.”

First Nat'l Bank v. Sullivan, 350 N.E.2d 473 (Mass. App. Ct. 1976). “It was held in that case that no award of counsel fees should be made out of the estate when (as in the present cases) the services in question have not been rendered to the estate unless the services have resulted in a benefit to the estate in the sense of creating, preserving…”

Lane v. Cronin, 185 N.E.2d 635 (Mass. 1962). “decision is whether under G. L. c. 215, § 39A, inserted by St. 1947, c.”

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