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Keywords

attorneystatuteappealsummary judgmentfiduciaryprobategood faith

attorneyappealfiduciaryprobategood faithrespondent

Related Cases

In re Estate of Breeden v. Gelfond, 87 P.3d 167

Facts

The estate of Spicer Breeden has been in probate since 1996, with Sydney Stone previously filing appeals in the proceedings. Lawrence P. Gelfond was appointed as the personal representative in June 1997 but was replaced in September 1998 after Stone sought his removal. Following his removal, Stone filed a surcharge petition against Gelfond in April 1999, leading to a series of court rulings, including a partial summary judgment that denied Stone's claims regarding improper sales and failure to pursue an insurance claim.

At petitioner's request, respondent was appointed personal representative of the estate in June 1997. He served in this capacity until petitioner sought to have him replaced. His petition to withdraw was granted effective September 9, 1998.

Issue

The main legal issues included whether the former personal representative was entitled to attorney fees for defending against a surcharge action and whether he had breached his fiduciary duties.

We first address respondent's contention on cross-appeal that the probate court erred in holding that a retired personal representative is not entitled to recover legal fees and unreimbursed costs incurred in the successful defense against a surcharge action.

Rule

Under § 15–12–720, a personal representative is entitled to recover necessary expenses and reasonable attorney fees incurred in good faith while defending or prosecuting any proceeding.

Section 15–12–720 then provided: “If any personal representative or person nominated as personal representative defends or prosecutes any proceeding in good faith, whether successful or not he is entitled to receive from the estate his necessary expenses and disbursements including reasonable attorneys' fees incurred.”

Analysis

The court analyzed the statute and determined that it does not distinguish between current and former personal representatives regarding the recovery of fees. It concluded that Gelfond, having successfully defended against the surcharge action, was entitled to recover his legal fees and costs, as his actions were in good faith and benefited the estate.

Here, although respondent prevailed on the merits, the probate court found no persuasive Colorado authority allowing it to award attorney fees to a retired fiduciary who successfully defends a surcharge action.

Conclusion

The court reversed the probate court's denial of attorney fees and costs to Gelfond, remanding the case for further proceedings to determine the appropriate amount. The other judgments and orders of the probate court were affirmed.

The judgment denying respondent's request for costs and attorney fees is reversed, and the case is remanded for proceedings to determine the amount, if any, of necessary expenses, disbursements, and reasonable attorney fees that respondent may be awarded.

Who won?

Lawrence P. Gelfond prevailed in the case because the court found that he was entitled to recover attorney fees and costs incurred in defending against the surcharge action.

In our view, such fees and costs are authorized under the relevant version of § 15–12–720, Colo. Sess. Laws 1973, ch. 451, § 153–3–720 at 1591.

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