In Re Kiebler Estate , 131 Mich. App. 441 ( 1984 )

131 Mich. App. 441 (1984) 345 N.W.2d 713

In re KIEBLER ESTATE

Docket No. 67451.

Michigan Court of Appeals.

Decided January 3, 1984.

Steven J. Polich, P.C. (by Timothy D. Arner), for appellants.

Smith, Johnson & Demlow, Attorneys, P.C. (by Patrick E. Heintz), for appellee.

Before: R.B. BURNS, P.J., and MacKENZIE and J.L. BANKS,^[*] JJ.

PER CURIAM.

Appellants, beneficiaries of three-fourths of the Estate of Richard J. Kiebler, appeal as of right from the probate court's allowance of the appellee's first annual account. Appellants contest the allowance of fiduciary fees and attorney fees totaling $90,000.^[1]

The Revised Probate Code authorizes payment of reasonable compensation to a fiduciary and to attorneys who perform necessary legal services in behalf of the estate. MCL 700.541; MSA 27.5541 and MCL 700.543; MSA 27.5543. PCR 908.3 provides that, unless attorney fees are consented to by all the parties, the attorney seeking compensation must provide the court with a written description of services performed, a summary of the work done and other information that may be helpful to the court in determining reasonable compensation.

In the present case, appellee appended to his first annual account a 52-page statement of services rendered in behalf of the estate by the law firm of Smith, Johnson & Demlow, Attorneys, P.C., and by appellee in his capacity as personal representative.^[2] The statement contained itemized entries with brief descriptions of work performed on a total of 238 dates during the 13-month period beginning May 30, 1981, and ending June 30, 1982. The information supplied to the probate court did not, however, justify the allowance of $90,000 as reasonable fiduciary fees and attorney fees for the following reasons. See In re Estate of Weaver, 119 Mich. App. 796; 327 NW2d 366 (1982).

First, the statement fails to indicate whether the services were performed by appellee in his capacity as fiduciary or whether the work represented necessary legal services performed by the law firm. The distinction is important since MCL 700.543; MSA 27.5543 only allows compensation for necessary legal services. Appellee must identify which entries are claimed as legal services and what proportion of the total claimed fee represents compensation for legal services.

Second, certain entries relate to services rendered in connection with the operation of Kiebco Foods, Inc., the principal asset of the estate. To the extent appellee operated the company in his capacity as fiduciary of the estate, he is certainly entitled to reasonable compensation. However, it appears that appellee also performed services for Kiebco in his capacity as corporate counsel and was separately compensated for those services. We believe appellants are entitled to a determination regarding any services for which appellee has already been compensated in his capacity as corporate counsel for Kiebco.

Third, the statement contains no designation of the time spent in performing the claimed services. Several of the entries are identified only as conferences or telephone calls, without any description of the subject matter. Several other entries involved administrative duties such as writing checks and depositing receipts. We recognize that appellee and his law firm rendered many valuable and complex administrative and legal services during this period. However, the statement submitted by appellee leaves the probate court and this Court without any means of determining the reasonableness of time spent in performing the various legal services to the estate. Appellee has not shown how he arrived at the $90,000 figure.

Finally, we agree that appellants are entitled to a statement of whether the claimed fiduciary fees and attorney fees represent compensation for all of the services rendered to the date of the first annual account.

We therefore reverse the allowance of fiduciary fees and attorney fees and remand the case to the probate court for an evidentiary hearing and determination of reasonable fiduciary fees and attorney fees to which appellee may be entitled. Since Judge Robertson disqualified himself subsequent to his allowance of the first annual account, the determination must necessarily be made by a different probate judge. Our holding makes it unnecessary to rule on the remaining issue raised by appellants.

No interest shall be chargeable against attorney fees or fiduciary fees during the appeal period, nor shall attorney fees or fiduciary fees be charged against the estate for this appeal, this Court finding that such interest, fiduciary fees or attorney fees for appeal do not benefit the estate. In re Baldwin's Estate, 311 Mich. 288; 18 NW2d 827 (1945); In re Brack Estate, 121 Mich. App. 585; 329 NW2d 432 (1982).

Reversed and remanded. We do not retain jurisdiction.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] The court's order of February 17, 1982, approved payment of partial attorney fees in the amount of $40,000. The September 17, 1982, order allowing the first annual account approved fiduciary fees and attorney fees in the amount of $50,000, but stayed payment of $25,000 pending appeal.

[2] Appellee is a shareholder in the law firm.