Wis. Stat. » CHAPTER 851 — PROBATE — DEFINITIONS AND GENERAL PROVISIONS

Wis. Stat. § 851.40

Basis for attorney fees

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851.40851.40 Basis for attorney fees.
851.40(1)(1) Any attorney performing services for the estate of a deceased person in any proceeding under chs. 851 to 879, including a proceeding for informal administration under ch. 865, shall be entitled to just and reasonable compensation for such services.
851.40(2)(2) Any personal representative, heir, beneficiary under a will or other interested party may petition the court to review any attorney’s fee which is subject to sub. (1). If the decedent died intestate or the testator’s will contains no provision concerning attorney fees, the court shall consider the following factors in determining what is a just and reasonable attorney’s fee:
851.40(2)(a)(a) The time and labor required.
851.40(2)(b)(b) The experience and knowledge of the attorney.
851.40(2)(c)(c) The complexity and novelty of the problems involved.
851.40(2)(d)(d) The extent of the responsibilities assumed and the results obtained.
851.40(2)(e)(e) The sufficiency of assets properly available to pay for the services, except that the value of the estate may not be the controlling factor.
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851.40 HistoryHistory: 1975 c. 329; 1993 a. 490.
851.40 Cross-referenceCross-reference: See s. 865.16 (1m) review of attorney fees by the probate registrar.
851.40 AnnotationAn attorney’s failure to communicate with one of the heirs, in violation of a court order, was an appropriate basis for reducing attorney fees. In Matter of Estate of Huehne, 175 Wis. 2d 33, 498 N.W.2d 870 (Ct. App. 1993).
851.40 AnnotationAn attorney’s fee based on a contract to pay the attorney 4 percent of the gross estate violated sub. (2) (e). Reduction was a proper exercise of judicial discretion. Estate of Konopka, 175 Wis. 2d 100, 498 N.W.2d 853 (Ct. App. 1993).
851.40 AnnotationSub. (1) did not authorize payment for an attorney’s services when it was in the estate’s interest to let the interested parties litigate an issue and when, if the attorney’s position prevailed, no property would have been added to the estate. Bell v. Neugart, 2002 WI App 180, 256 Wis. 2d 969, 650 N.W.2d 52, 01-2533.
851.40 AnnotationProfessional responsibility and probate practices. Martin, 1975 WLR 911.
Notes of Decisions
Cited in 13 cases (2 in the last 5 years), 1981–2026 · leading case: Bell v. Neugart
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Bell v. Neugart (2002) wisctapp · cites it 6× “1988), as is the decision of what fees are reasonable for an attorney providing services for an estate under Wis. Stat. § 851.40 , see id. at 93-94 . However, whether a statute either requires or authorizes payment of a certain category of expenses or fees is a question of law,…”
Matter of Estate of Anderson (1988) wisctapp · cites it 4× “As to the trial court’s allowance for $10,000 in attorneys’ fees, sec. 851.40(1), Stats., provides for "just and reasonable” compensation to attorneys who perform services for an estate.”
In Matter of Estate of Trotalli (1985) wis · cites it 2× “1983-84, which establishes the basis for payment of just and reasonable compensation to an attorney performing services for the estate of a deceased person, 10 provides *358 that the court consider “the sufficiency of assets properly available to pay for the services, except…”
Cairo v. Skow (1981) wied · cites it 2× “The power to review fees is found in section 851.40(2), Wis.Stat., which provides in part: “Any personal representa *205 tive, heir, beneficiary under a will or other interested party may petition the court to review any attorney’s fee [for performing services for the estate of…”
Disciplinary Proceedings Against Kasprowicz (2004) wis · cites it 2× “a percentage of the estate's value for his representation in the mat *104 ter, Kasprowicz violated a statute [ Wis. Stat. § 851.40 (2)(e)] and supreme court decision [In re Disciplinary Proceedings Against Sylvan, 202 Wis.”
Theresa Anne Carey v. Tai P. Seeff (2026) wisctapp · cites it 16× “§ 851.40” is committed to the circuit court’s discretion.”
In Matter of Estate of Huehne (1993) wisctapp · cites it 2× “Section 851.40(2), Stats., provides that when an heir under a will that has no provision concerning attor *43 ney's fees petitions the court for review of an attorney's fee, the trial court shall consider the following factors when determining what is a reasonable attorney's…”
In the Matter of Disciplinary Proceedings Against Sylvan (1996) wis · cites it 2× “1 Wis. Stat. § 851.40 (1993-94) provides, in part: Basis for attorney fees.”
Disciplinary Proceedings Against Roethe (2010) wis · cites it 5× “By having the two co-personal representatives sign a Legal Services Agreement that provided for a fee based on a percentage of the estate's gross value, and by charging a percentage of the estate's value for his representation, Attorney Roethe violated Wis. Stat. § 851.40…”
Sherman v. Hagness (1995) wisctapp · cites it 3× “The residual beneficiaries of the estate petitioned the probate court for review of Sherman's attorney fees under § 851.40, STATS., and his fees as personal representative pursuant to § 857.”
Faith A. Lowell v. Patricia Hammarback (2019) wisctapp “40 directs a circuit court to consider five factors in determining whether attorney’s fees claimed to have been incurred during the administration of a probate estate are just and reasonable: (1) the time and labor involved; (2) the experience and knowledge of the attorney; (3)…”
Richard A. Lauer v. Dennis Lauer (2023) wisctapp “§§ 851.40, 857.05 (allowing reimbursement of attorney fees for the administration of estates).”
Show all 13 citing cases →
— Wis. Stat. § 851.40(1) — 3 cases
Bell v. Neugart (2002) wisctapp “1988), as is the decision of what fees are reasonable for an attorney providing services for an estate under Wis. Stat. § 851.40 , see id. at 93-94 . However, whether a statute either requires or authorizes payment of a certain category of expenses or fees is a question of law,…”
Matter of Estate of Anderson (1988) wisctapp “As to the trial court’s allowance for $10,000 in attorneys’ fees, sec. 851.40(1), Stats., provides for "just and reasonable” compensation to attorneys who perform services for an estate.”
Theresa Anne Carey v. Tai P. Seeff (2026) wisctapp “§ 851.40” is committed to the circuit court’s discretion.”
— Wis. Stat. § 851.40(2) — 6 cases
Matter of Estate of Anderson (1988) wisctapp “As to the trial court’s allowance for $10,000 in attorneys’ fees, sec. 851.40(1), Stats., provides for "just and reasonable” compensation to attorneys who perform services for an estate.”
Cairo v. Skow (1981) wied “The power to review fees is found in section 851.40(2), Wis.Stat., which provides in part: “Any personal representa *205 tive, heir, beneficiary under a will or other interested party may petition the court to review any attorney’s fee [for performing services for the estate of…”
In Matter of Estate of Trotalli (1985) wis “1983-84, which establishes the basis for payment of just and reasonable compensation to an attorney performing services for the estate of a deceased person, 10 provides *358 that the court consider “the sufficiency of assets properly available to pay for the services, except…”
Theresa Anne Carey v. Tai P. Seeff (2026) wisctapp “§ 851.40” is committed to the circuit court’s discretion.”
In Matter of Estate of Huehne (1993) wisctapp “Section 851.40(2), Stats., provides that when an heir under a will that has no provision concerning attor *43 ney's fees petitions the court for review of an attorney's fee, the trial court shall consider the following factors when determining what is a reasonable attorney's…”
— Wis. Stat. § 851.40(2)(a) — 1 case
Theresa Anne Carey v. Tai P. Seeff (2026) wisctapp “§ 851.40” is committed to the circuit court’s discretion.”
— Wis. Stat. § 851.40(2)(b) — 1 case
Theresa Anne Carey v. Tai P. Seeff (2026) wisctapp “§ 851.40” is committed to the circuit court’s discretion.”
— Wis. Stat. § 851.40(2)(c) — 1 case
Theresa Anne Carey v. Tai P. Seeff (2026) wisctapp “§ 851.40” is committed to the circuit court’s discretion.”
— Wis. Stat. § 851.40(2)(d) — 1 case
Theresa Anne Carey v. Tai P. Seeff (2026) wisctapp “§ 851.40” is committed to the circuit court’s discretion.”
— Wis. Stat. § 851.40(2)(e) — 2 cases
Theresa Anne Carey v. Tai P. Seeff (2026) wisctapp “§ 851.40” is committed to the circuit court’s discretion.”
Disciplinary Proceedings Against Roethe (2010) wis “By having the two co-personal representatives sign a Legal Services Agreement that provided for a fee based on a percentage of the estate's gross value, and by charging a percentage of the estate's value for his representation, Attorney Roethe violated Wis. Stat. § 851.40…”
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