Opinion
No. 3-924 / 02-1602
Filed February 27, 2004
Appeal from the Iowa District Court for Dubuque County, Alan L. Pearson, Judge.
Appellants contend the district court set inadequate fees for services rendered by the executor and his attorney for extraordinary services. AFFIRMED.
Donald Moonen, Epworth, for appellant.
John Carr, Manchester, for appellee.
Considered by Sackett, C.J., and Mahan and Eisenhauer, JJ.
Appellants Eugene E. Weigel and Donald F. Moonen, the executor and attorney for the Eva Mae Weigel estate, appeal from a district court order fixing their extraordinary executor and attorney fees in the estate. Weigel, as executor, filed an application seeking extraordinary fees for 328.5 hours of work at $35.00 an hour, for a total of $11,497.50. Moonen, as attorney for the estate, filed an application seeking extraordinary fees for 158 hours at $120.00 an hour, $190.00 for deed drafting, and $1,375.00 for tax return preparation, for a total of $20,515.00. The district court fixed the extraordinary fees of Weigel in the amount of $3,000.00 and the extraordinary fees of Moonen at $5,000.00. On appeal appellants contend the district court (1) abused its discretion in the fee award, (2) was unreasonable and arbitrary in awarding them a lump sum without relating it to the itemized services and in failing to explain how the lump sum amount was reached, (3) showed prejudice in considering the auction sale of real estate to the executor which sale had prior court approval, (4) failed to award fees for litigated matters, (5) failed to award fees for real estate sales and tax matters and failed to award fees at the requested rate, and (6) failed to deny the appellants' request for a new trial and to itemize the fees awarded. Appellants also request compensation for this appeal. We remanded to the district court for further itemization of the amounts awarded for respective services.
The district court filed a supplemental order itemizing the $3000 for the executor and the $5000 for the attorney. In the order the district court indicated it had awarded the executor for the sale of real estate $20.00 an hour for 140 hours. The court reasoned the attorney should have handled the sale in less time and awarded the attorney $100 an hour for 23 hours of time. The court indicated that $1,250 was awarded for preparation of tax returns. The court further indicated that he awarded the executor fees for ten hours at $20.00 an hour for work regarding the Frieburger Trust for a total of $200 and the attorney 10.5 hours at $100 for the trust for a total of $1050. The court further said he awarded the executor four hours at the $100 per hour rate for dealing with claims of the Internal Revenue Service and the State of Colorado. The order on remand now having been filed, we address the issues raised by appellants in challenging the alleged inadequacy of the fees.
Our review is de novo. In re Estate of Bolton, 403 N.W.2d 40, 42 (Iowa Ct.App. 1987); In re Estate of Bruene, 350 N.W.2d 209, 211 (Iowa Ct.App. 1984). To a considerable extent the compensation of an attorney or executor rests in the discretion of the trial court but this must be a reasonable discretion. See Glynn v. Cascade State Bank, 227 Iowa 932, 939, 289 N.W. 722, 725 (1940). The award of fees in probate cases is governed by Iowa Code sections 633.197 to 633.199 (2001). Section 633.199 provides:
Such further allowances as are just and reasonable may be made by the court to personal representatives and their attorneys for actual necessary and extraordinary expenses or services. Necessary and extraordinary services shall be construed to also include services in connection with real estate, tax matters, and litigated matters.
These sections are founded on quantum meruit; personal representatives and their attorneys are entitled to the reasonable value of their ordinary services not exceeding the specified percentages, and to the reasonable value of their extraordinary services, if any. In re Estate of Simon, 288 N.W.2d 549, 550 (Iowa 1980); In re Estate of Engelkes, 256 Iowa 213, 218-19, 127 N.W.2d 111, 114 (1964); Glynn, 227 Iowa at 932, 289 N.W. at 725; Bolton, 402 N.W.2d at 43.
Iowa Rule of Probate Procedure 7.2(3) provides:
When an allowance for extraordinary expenses or services is sought pursuant to Iowa Code section 633.199, the request shall include a written statement showing the necessity for such expenses or services, the responsibilities assumed, and the amount of extra time or expense involved. In appropriate cases, the statement shall also explain the importance of the matter to the estate and describe the results obtained. The request maybe made in the final report or by separate application. It shall be set for hearing upon reasonable notice, specifying the amounts claimed, unless waivers of notice identifying the amounts claimed are filed by all interested persons. The applicant shall have the burden of proving such allowance should be made.
Iowa Code section 633.35 provides:
Reports and applications for order. All reports and applications for orders in probate must be in writing, verified and self-explanatory, so that the clerk or court from a perusal thereof may understand the relief sought without explanations.
Eva Mae Weigel died testate on May 14, 1999. Left surviving her were eight children all of legal age including appellant executor. An amended probate inventory valued her "Iowa gross estate" at $413,058.51. On February 25, 2002, pursuant to the appellants' application the district court set fees for ordinary services in the amount of $8,381.17 and additionally awarded expenses of $390.10. The fees of the attorney were set at $8,381.17 plus expenses of $136.90. This order is not contested.
The initial inventory valued it at $321,402.31.
The probate inventory shows decedent died owning three parcels of real estate, a 40.04-acre tract, and a 60.21-acre tract in Delaware County. The two tracts were initially valued together at $180,000. In addition, decedent had a personal residence in Dyersville in Dubuque County valued in the probate inventory at $60,000. The executor was authorized by decedent's will to sell personal property and real estate without court order. It appears that the small tract sold for about $94,000, and the sale of decedent's house resulted in a net sale price of just over $45,000. The executor purchased the 60.21 acre tract. The sale to him was made on notice to all the heirs, no objections were made, and the sale was approved by the court.
We have considered the arguments raised by the appellants and on the record made cannot say the district court abused its discretion in fixing the fees awarded. We affirm.