116.183
Expenses of personal representative; determination of attorney fees. (1) A personal representative
shall be allowed in the settlement of the final account all necessary expenses
incurred in the care, management and settlement of the estate, including
reasonable fees of appraisers, attorneys and other qualified persons employed
by the personal representative. A partial award of such expenses, including
fees, may be allowed prior to settlement of the final account upon petition,
showing that the final account reasonably cannot be filed at that time, and
upon notice as directed by the court.
(2)(a) An award
of reasonable attorney fees under this section shall be made after
consideration of the customary fees in the community for similar services, the
time spent by counsel, counsel’s experience in such matters, the skill
displayed by counsel, the result obtained, any agreement as to fees between the
personal representative and the counsel of the personal representative, the
amount of responsibility assumed by counsel considering the total value of the
estate, and other factors as may be relevant. No single factor is controlling.
(b) Before the
court awards attorney fees in an amount less than the amount requested by the
personal representative, the court must allow the attorney an opportunity to
submit additional materials supporting the requested amount.
(3) A personal
representative who defends or prosecutes any proceeding in good faith and with
just cause, whether successful or not, is entitled to receive from the estate
necessary expenses and disbursements, including reasonable attorney fees, in
the proceeding. [1969 c.591 §185; 1977 c.733 §1; 1987 c.518 §1; 2017 c.169 §37;
2021 c.282 §20]
116.185 [Repealed by 1961 c.417 §2]
116.186 [1961 c.417 §1; repealed by 1969
c.591 §305]
116.190 [Repealed by 1969 c.591 §305]
Notes of Decisions
In Re Complaint as to the Conduct of Altstatt, 897 P.2d 1164 (Or. 1995).
· cites it 11× “Oregon and Michigan who, while representing a personal representative in Michigan, collected a $2,775 fee from the heirs but did not disclose the fee to the probate court, violated DR 2-106(A)); In re Phelps, 306 Or 508, 517 , 760 P2d 1331 (1988) (lawyer disbarred for, inter…”
Kidney Ass'n of Oregon v. Ferguson, 843 P.2d 442 (Or. 1992).
· cites it 4× “*148 The probate court reduced petitioner’s fees in this case after considering the factors listed in ORS 116.183. The probate court was not obliged to further reduce fees or deny them because of an alleged, but unsubstantiated, breach of loyalty.”
Tilton v. Lee, 298 P.3d 559 (Or. Ct. App. 2013).
· cites it 10× “This case was slightly more complex than is average, but, after reviewing *249 the factors set forth in ORS 116.183,1 find that a reasonable amount for fees and costs to complete this probate matter should have been no more than $9,500.”
Kidney Ass'n of Oregon, Inc. v. Ferguson, 775 P.2d 1383 (Or. Ct. App. 1989).
· cites it 6× “[1] KAO also argues that the McMenamin firm could not bill for time spent by legal assistants and clerks, relying on ORS 116.183(1). However, "customary fees in the community for similar services" include fees for legal assistants and clerks.”
Hunter v. Craft, 600 P.2d 415 (Or. 1979).
· cites it 16× “2d 156 (1947), and under ORS 116.183(2), which provides: "A personal representative who defends or prosecutes any proceeding in good faith and with just cause, whether successful or not, is entitled to receive from the estate his necessary expenses and disbursements, including…”
In Re Complaint as to the Conduct of Coe, 731 P.2d 1028 (Or. 1987).
· cites it 2× “5 The statutory authority for allowance of attorney fees to a personal representative is found in ORS 116.183(1), which provides that a “personal representative shall be allowed in the settlement of the final account * * * reasonable fees of * * * attorneys.”
In Re Potts, 718 P.2d 1363 (Or. 1986).
· cites it 3× “There was no way for the judge to tell from that record whether the fees claimed met the standards set forth in ORS 116.183. There is no reference to Mr.”
Smith v. United States Nat'l Bank, 615 P.2d 1119 (Or. Ct. App. 1980).
· cites it 3× “Leo Smith, the attorney for defendant United States National Bank, the personal representative of the estate of Ethel Kelly, deceased, brought an action at law against defendant seeking damages for its refusal to appeal (1) the probate court’s award under ORS 116.183 of attorney…”
In Re Complaint as to the Conduct of Phelps, 760 P.2d 1331 (Or. 1988).
“In a “final accounting” dated March 24, the accused retained attorney fees of $1,935, *517 although he had not obtained authorization from the court as required by ORS 116.183(1). The accused testified that he was not aware of that requirement.”
Warkentin v. Shirey, 480 P.3d 289 (Or. Ct. App. 2020).
· cites it 3× “A limited judgment awarding personal representative fees is reviewable only after “[a] decision on a request for an award of expenses under ORS 116.183.” ORS 111.275(1)(e). That 8 While we do not reach the merits of respondent’s contention, we do note that respondent is not…”
In re Complaint as to the Conduct of Trammell, 718 P.2d 1363 (Or. 1986).
· cites it 3× “There was no way for the judge to tell from that record whether the fees claimed met the standards set forth in ORS 116.183. There is no reference to Mr.”
Matter of Est. of Vander Galien, 614 P.2d 127 (Or. Ct. App. 1980).
“183(1) provides in pertinent part: "(1) A personal representative shall be allowed in the settlement of his final account all necessary expenses incurred in the care, management and settlement of the estate, including reasonable fees of appraisers, attorneys and other qualified…”
— Or. Rev. Stat. § 116.183(1) — 9 cases
In Re Complaint as to the Conduct of Altstatt, 897 P.2d 1164 (Or. 1995).
“Oregon and Michigan who, while representing a personal representative in Michigan, collected a $2,775 fee from the heirs but did not disclose the fee to the probate court, violated DR 2-106(A)); In re Phelps, 306 Or 508, 517 , 760 P2d 1331 (1988) (lawyer disbarred for, inter…”
Kidney Ass'n of Oregon v. Ferguson, 843 P.2d 442 (Or. 1992).
“*148 The probate court reduced petitioner’s fees in this case after considering the factors listed in ORS 116.183. The probate court was not obliged to further reduce fees or deny them because of an alleged, but unsubstantiated, breach of loyalty.”
In Re Complaint as to the Conduct of Coe, 731 P.2d 1028 (Or. 1987).
“5 The statutory authority for allowance of attorney fees to a personal representative is found in ORS 116.183(1), which provides that a “personal representative shall be allowed in the settlement of the final account * * * reasonable fees of * * * attorneys.”
Kidney Ass'n of Oregon, Inc. v. Ferguson, 775 P.2d 1383 (Or. Ct. App. 1989).
“[1] KAO also argues that the McMenamin firm could not bill for time spent by legal assistants and clerks, relying on ORS 116.183(1). However, "customary fees in the community for similar services" include fees for legal assistants and clerks.”
In Re Complaint as to the Conduct of Phelps, 760 P.2d 1331 (Or. 1988).
“In a “final accounting” dated March 24, the accused retained attorney fees of $1,935, *517 although he had not obtained authorization from the court as required by ORS 116.183(1). The accused testified that he was not aware of that requirement.”
— Or. Rev. Stat. § 116.183(2) — 3 cases
Kidney Ass'n of Oregon, Inc. v. Ferguson, 775 P.2d 1383 (Or. Ct. App. 1989).
“[1] KAO also argues that the McMenamin firm could not bill for time spent by legal assistants and clerks, relying on ORS 116.183(1). However, "customary fees in the community for similar services" include fees for legal assistants and clerks.”
Hunter v. Craft, 600 P.2d 415 (Or. 1979).
“2d 156 (1947), and under ORS 116.183(2), which provides: "A personal representative who defends or prosecutes any proceeding in good faith and with just cause, whether successful or not, is entitled to receive from the estate his necessary expenses and disbursements, including…”
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