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05/10/94 ESTATE NEIL COLEMAN DECEASED (J. BARTON

May 10, 1994

IN RE ESTATE OF NEIL COLEMAN, DECEASED (J. BARTON KALISH, EX'R OF THE ESTATE OF NEIL COLEMAN, PETITIONER-APPELLANT).


Appeal from the Circuit Court of Lake County. No. 90-P-639. Honorable Emilio B. Santi, Judge, Presiding.

Released for Publication June 15, 1994.

McLAREN, Doyle, PECCARELLI

The opinion of the court was delivered by: Mclaren

JUSTICE McLAREN delivered the opinion of the court:

The petitioner, J. Barton Kalish, appeals from the ruling of the circuit court of Lake County granting him $15,967.50 for work as the executor of the estate of Neil Coleman. The petitioner sought $80,000. We affirm.

Coleman died on July 3, 1991, leaving an estate of approximately $8 million. The petitioner, a Chicago attorney and a long-time friend of Coleman, was named executor of the estate. He also served as co-executor of an irrevocable trust set up by Mr. Coleman prior to his death. After disagreements arose between the petitioner and members of the Coleman family, the petitioner resigned as executor of the estate and trust on November 25, 1991, prior to the closing of the estate.

During the time he acted as executor, the petitioner made several payments from the Coleman estate and/or trust to himself for his services totalling $75,000. The petitioner did not notify the beneficiaries of the estate at the time he made the payments to himself. When he took money from the trust, he did not obtain the consent of a cotrustee, as required by the trust instrument.

On February 24, 1992, the petitioner filed in the probate division of the circuit court a petition for allowance of executor's and attorney fees of $80,000. He deducted the $75,000 he had paid himself prior to resigning as executor. The petitioner estimated that he worked 400 hours on estate matters and charged $200 per hour. The Coleman estate filed a response to the petition objecting to the fees.

The circuit court conducted a four-day probate hearing on the petition, after which it ruled that the petitioner was entitled to $15,967.50. The court determined that the petitioner had actually worked 106.45 hours as executor of the Coleman estate and was entitled to an hourly fee of $150. The petitioner appealed from that judgment.

The petitioner claims that the circuit court improperly reduced his fee as punishment for his making payments to himself from theColeman trust and estate without authority or notice to the heirs. The petitioner contends that this action by the circuit court was not based on either the law or facts of the case, although he admits that it was "a mistake in client relations" for him not to notify the heirs. The petitioner further claims that the trial court erred by reducing the number of hours for which he was entitled to payment from 400 to 106.45 without giving any indication how it arrived at the lower figure. Finally, the petitioner claims the trial court erred in underestimating the complexity of the Coleman estate and the skill and time required by him to function as executor.

Executors are entitled to "reasonable compensation" for their services. (Ill. Rev. Stat. 1991, ch. 110 1/2, pars. 27-1, 27-2 (now 755 ILCS 5/27-1, 5/27-2 (West 1992)); In re Estate of Marshall (1988), 167 Ill. App. 3d 549, 553, 118 Ill. Dec. 355, 521 N.E.2d 637.) The trial court has broad discretion in determining what constitutes "reasonable" compensation. ( In re Estate of Johnson (1991), 219 Ill. App. 3d 962, 967, 162 Ill. Dec. 392, 579 N.E.2d 1206.) Because "the probate court has the requisite skill and knowledge to decide what is fair and reasonable compensation" ( In re Estate of Brown (1978), 58 Ill. App. 3d 697, 707, 15 Ill. Dec. 916, 374 N.E.2d 699), a probate court's determination of such fees will not be overturned on appeal unless it is "manifestly or palpably erroneous." Marshall, 167 Ill. App. 3d at 553.

In determining what is a reasonable fee, no clear-cut rules exist. Rather, the determination must be based on the facts and circumstances of the particular case. ( In re Estate of Miller (1990), 197 Ill. App. 3d 67, 71, 144 Ill. Dec. 890, 556 N.E.2d 568.) The factors to be considered include "the size of the estate, the work involved, the skill evidenced by the work, time expended, the success of the efforts involved, and the good faith and efficiency with which the estate was administered." ( Marshall, 167 Ill. App. 3d at 553, citing In re Estate of Thomson (1986), 139 Ill. App. 3d 930, 939, 94 Ill. Dec. 316, 487 N.E.2d 1193.) Further, the trial court is not bound by the opinion of expert witnesses as to the reasonableness of fees, but may rely on its own knowledge and experience and exercise its independent judgment. Miller, 197 Ill. App. 3d at 71.

A review of the trial court's decision in this matter reveals that the court carefully weighed all of the Marshall factors and based its decision on a reasonable interpretation of the evidence. Although it is true, as the petitioner argues in his brief, that the circuit court found great fault with his removal of funds from the Coleman estate and trust without notice or approval, the court did not evince an improper desire to punish the petitioner.

The amount of time expended by a party requesting a fee is the most important factor in determining reasonable compensation. ( In re Marriage of Reczek (1981), 95 Ill. App. 3d 220, 222, 50 Ill. Dec. 844, 420 N.E.2d 161.) In actions torecover compensation for legal services, the burden of proof rests with the attorney to establish his case. Bank ...


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