If any personal representative or person nominated as a 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.

History: 1953 Comp., § 32A-3-720, enacted by Laws 1976 (S.S.), ch. 37, § 11; repealed and reenacted by Laws 1995, ch. 210, § 39.

Repeals and reenactments. — Laws 1995, ch. 210, § 39 repealed 45-3-720 NMSA 1978, as enacted by Laws 1976 (S.S.), ch. 37, § 11, relating to compensation for attorneys for personal representatives, and enacted a new section, effective July 1, 1995.

Compiler's notes. — This section is similar to former 31-10-4, 1953 Comp.

Cross references. — For fees and costs, see 1-054 NMRA.

Generally. — An executor or administrator is entitled to be reimbursed for all expenses incurred in the care, management, and settlement of an estate, including reasonable attorney's fees incurred in the course of necessary litigation, or in matters requiring legal advice or counsel. Perez v. Gil's Estate, 1924-NMSC-014, 29 N.M. 313, 222 P. 907.

Fees for actions benefiting the estate. — In order to charge attorney's fees against an estate under this section, the fees must be for services benefitting the estate. When the fees arise from actions which do not benefit the estate but cause prolonged litigation for the benefit of one person rather than the estate, the fees are not justified, even though the party sought to defend an earlier will. Lucero v. Lucero, 1994-NMCA-128, 118 N.M. 636, 884 P.2d 527 (decided under former law).

Section no longer requires that action benefit the estate. — The unambiguous language of this section, as amended in 1995, now only requires an action by the personal representative to be in good faith in order to receive attorneys' fees; it does not require that the suit benefit the estate and, in fact, allows for an award of attorneys' fees even if the personal representative is not successful in the litigation. Garcia v. Taylor, 1998-NMCA-145, 126 N.M. 16, 966 P.2d 183.

United States treasury notes are "cash" and fall within the category of probate assets in 45-3-719 NMSA 1978 that calls for a reduced rate of compensation for personal representatives. In re Estate of Corwin, 1987-NMCA-100, 106 N.M. 316, 742 P.2d 528 (decided under former law).

Generally, as to discharge of attorney named in will. — The right of executors to refuse to employ an attorney who had been named as such in a will is upheld and the attorney is entitled to compensation only for services performed prior to the date of his discharge by the executor or executrix. Hoxsey v. Fullerton, 1960-NMSC-020, 67 N.M. 77, 352 P.2d 652 (decided under former law).

Allowance to attorney before and at discharge. — An allowance of the claim of an attorney for the executrix before his discharge was error, and upon his subsequent discharge the allowance should be for the proportionate share of the statutory fee, or the reasonable value of the services performed. In re Winston's Will, 1936-NMSC-045, 40 N.M. 348, 59 P.2d 904 (decided under former law).

Attorney's fees allowed as long as good faith attempt to defend will. — As long as there is a good faith attempt by the personal representative to defend the will, attorney's fees will be allowed whether the will is upheld or not. In re Will of Ferrill, 1983-NMSC-030, 99 N.M. 503, 660 P.2d 593 (decided under former law).

Where gifts excluded from community property in computing attorney's fee. — There is a presumption that property acquired during marriage is community property, however, gifts made directly to the husband, during marriage, by his father, must be regarded as separate property in computing attorney's fee for services rendered executrix. In re Winston's Will, 1936-NMSC-045, 40 N.M. 348, 59 P.2d 904 (decided under former law).

Attorneys' fees usually same as personal representatives'. — Ordinarily, in conducting probate proceeding, attorneys' fees are the same as those allowed to administrators and executors. However, the court may fix a different fee upon a proper showing. In re Hildebrand's Estate, 1953-NMSC-113, 57 N.M. 778, 264 P.2d 674 (decided under former law).

Fees may differ for good cause shown. — The statutory policy of allowing attorneys' fees in an amount equal to the administrator's compensation is not without exception, and the attorneys' fees may be otherwise fixed by the court for good cause shown. In re Keel's Estate, 1933-NMSC-068, 37 N.M. 569, 25 P.2d 806 (decided under former law).

Attorney may receive quantum meruit till date of discharge. — The trial court may itself set the attorneys' fees on a quantum meruit basis to date of discharge having due regard for the circumstances of the particular case. Hoxsey v. Fullerton, 1960-NMSC-020, 67 N.M. 77, 352 P.2d 652 (decided under former law).

No fee after discharge. — An attorney for an estate is not entitled to an allowance for work performed after discharge. Hoxsey v. Fullerton, 1960-NMSC-020, 67 N.M. 77, 352 P.2d 652 (decided under former law).

Trial court may set attorneys' fees. — The trial court may, with due regard for the circumstances of the particular case, set the attorneys' fees. Hoxsey v. Fullerton, 1960-NMSC-020, 67 N.M. 77, 352 P.2d 652 (decided under former law).

Fees set by trial court disturbed only if abuse of discretion. — The discretion of the trial court in fixing attorneys' fees in a proceeding to obtain approval of administrator's report will not be disturbed on appeal except upon a showing that there was an abuse of discretion. In re Hildebrand's Estate, 1953-NMSC-113, 57 N.M. 778, 264 P.2d 674 (decided under former law).

Attorneys' fees for defense of executor's alleged misconduct not estate expenses. — Attorneys' fees incurred by the estate's attorneys in defending against allegations that the executor misused his position and improperly disbursed estate funds are not proper estate expenses, but should be borne by the executor personally. In re Will of Hamilton, 1981-NMSC-120, 97 N.M. 111, 637 P.2d 542 (decided under former law).

Law reviews. — For annual survey of New Mexico law relating to civil procedure, see 13 N.M.L. Rev. 251 (1983).

Am. Jur. 2d, A.L.R. and C.J.S. references. — Authority of probate court to depart from statutory schedule fixing amount of executor's commissions and attorneys' fees, 40 A.L.R.4th 1189.

33 C.J.S. Executors and Administrators § 852.