in Re Poling Estate ( 2014 )

STATE OF MICHIGAN
COURT OF APPEALS
In re POLING Estate.
KEVIN ELLIOTT, Personal Representative for the UNPUBLISHED
Estate of PAUL A. POLING, December 16, 2014
Appellant,
v No. 317763
Ogemaw Probate Court
TOLFREE FOUNDATION, LC No. 11-014636-DE
Appellee.
Before: M. J. KELLY, P.J., and CAVANAGH and METER, JJ.
PER CURIAM.
In this fee dispute, Kevin Elliott appeals by right the trial court’s order approving a
substantially smaller fee than requested for his services as the personal representative for the
Estate of Paul A. Poling. Because we conclude the trial court’s decision to order compensation
at the lower rate was reasonable under the totality of the circumstances, we affirm.
Poling died in 2012. After Poling died, Elliott administered his estate, as provided in
Poling’s will. Poling was survived by one daughter, Janis Fontenot, and two siblings, Ben
Poling and Mary Jackson. Poling’s estate was worth approximately $764,000; it included two
residences,1 bank accounts, an annuity, and vendor interests in several land contracts.
After Elliott filed a final accounting for the estate, he requested compensation for 91
hours of work at $200 per hour. He testified that his hourly rate represented a 20 percent
reduction from the rate he usually billed his clients in his insurance agency and was premised on
his 35 years of experience in the insurance business. The probate court, however, concluded that
Elliott was not entitled to an hourly rate of $200. It determined that Elliott’s experience and the
nature of the work performed was commensurate with that of a fiduciary that would normally
1
Poling left one residence to the Tolfree Foundation to fund a scholarship program.
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charge $90 per hour. Accordingly, it approved a total fee of $8,190, which amounted to 91 hours
at $90 per hour.
On appeal, Elliott argues the probate court abused its discretion when it approved a fee
that was more than 50% lower than he requested. This Court reviews the factual findings
underlying a probate court’s decision for clear error, but reviews the court’s dispositional ruling
for an abuse of discretion. In re Temple Marital Trust, 278 Mich App 122, 128; 748 NW2d 265
(2008). A finding is clearly erroneous when this Court is left with a definite and firm conviction
that a mistake has been made. Parks v Parks, 304 Mich App 232, 237; 850 NW2d 595 (2014).
A trial court abuses its discretion when it selects an outcome that falls outside the range of
reasonable and principled outcomes. In re Temple Marital Trust, 278 Mich App at 128.
“A personal representative is entitled to reasonable compensation for services
performed.” MCL 700.3719(1). The probate court may review the reasonableness of the
personal representative’s compensation and order a refund if the court determines that the fee is
excessive. MCL 700.3721. “The determination of reasonable compensation to the personal
representative is, in general, the same as for the attorney.” In re Krueger Estate, 176 Mich App
241, 251, 438 NW2d 898 (1989). And, as is the case with attorney fees, there is no precise fee
schedule or formula for computing the amount of compensation to be paid a personal
representative. See In re Temple Marital Trust, 278 Mich App at 138. The probate court has the
“broadest discretion to evaluate the worth of the services rendered in light of its experience and
knowledge of such matters.” In re Thacker Estate, 137 Mich App 253, 258; 358 NW2d 342
(1984). The burden of proof is on the claimant to satisfy the court that services rendered were
necessary and that charges were reasonable. Comerica Bank v City of Adrian, 179 Mich App
712, 724; 446 NW2d 553 (1989).
The court thought Elliott’s proposed hourly rate was excessive and lowered it to $90 per
hour on the basis of evidence that this was the fiduciary rate charged by attorneys and corporate
fiduciaries in Wayne County. It also considered Elliott’s income level, the services rendered, the
time spent on estate administration, the nature and complexity of administration, the existence of
any animosity between the persons involved, and his skills.2 The administration of this estate
was straightforward. It did not involve a great number of creditors or beneficiaries, and it did not
require a high level of expertise or skill to finalize the estate. Nor did Elliott have unusual
professional expertise that would entitle him to a premium rate.
Elliott submitted the fee schedules of Citizens State Bank and Chemical Bank to the
probate court. Relying on these schedules, he maintains that Citizens State Bank would have
cost the estate over $22,000 and Chemical Bank would have charged a base fee of $3,000 plus an
hourly rate of $150 per hour for its trust officer’s time. Both comparisons are inapposite. The
fee that Citizens State Bank would purportedly have charged is based on a percentage fee
2
We note that Elliott relies on the factors enumerated in Comerica Bank and the probate court
utilized the factors listed in In re Krueger. However, the factors listed in In re Kruger
substantially mirror those listed in Comerica Bank. Moreover, both lists are not exhaustive. See
Comerica Bank, 179 Mich App at 724; In re Kruger, 176 Mich App at 248.
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arrangement, not on an hourly rate. In addition, under Chemical Bank’s fee schedule,
considering that Elliott is not a fiduciary skilled in estate administration, he would be equivalent
to a non-trust officer with an hourly rate of $80. Thus, Chemical Bank’s schedule actually
supports the probate court’s determination.
Examining the totality of the circumstances surrounding Elliott’s administration of the
estate, we cannot conclude that the trial court’s decision to order compensation at $90 per hour
for the requested number of hours fell outside the range of reasonable and principled outcomes.
In re Temple Marital Trust, 278 Mich App at 128.
Affirmed.
/s/ Michael J. Kelly
/s/ Mark J. Cavanagh
/s/ Patrick M. Meter
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