2017 ORS 116.183¹
Expenses of personal representative
  • determination of attorney fees

(1) A personal representative shall be allowed in the settlement of the final account all necessary expenses incurred in the care, management and settlement of the estate, including reasonable fees of appraisers, attorneys and other qualified persons employed by the personal representative. A partial award of such expenses, including fees, may be allowed prior to settlement of the final account upon petition, showing that the final account reasonably cannot be filed at that time, and upon notice as directed by the court.

(2)(a) An award of reasonable attorney fees under this section shall be made after consideration of the customary fees in the community for similar services, the time spent by counsel, counsel’s experience in such matters, the skill displayed by counsel, the result obtained, any agreement as to fees between the personal representative and the counsel of the personal representative, the amount of responsibility assumed by counsel considering the total value of the estate, and other factors as may be relevant. No single factor is controlling.

(b) Before the court awards attorney fees in an amount less than the amount requested by the personal representative, the court must allow the attorney an opportunity to submit additional materials supporting the requested amount.

(c) ORCP 68 does not apply to requests for attorney fees under this section.

(3) A personal representative who defends or prosecutes any proceeding in good faith and with just cause, whether successful or not, is entitled to receive from the estate necessary expenses and disbursements, including reasonable attorney fees, in the proceeding. [1969 c.591 §185; 1977 c.733 §1; 1987 c.518 §1; 2017 c.169 §37]

Notes of Decisions

Under this sec­tion, where per­sonal representative in good faith unsuccessfully prosecuted ap­peal from denial of peti­tion to admit will to probate, he was entitled to recover necessary expenses and attorney fees incurred on ap­peal. Hunter v. Craft, 287 Or 465, 600 P2d 415 (1979)

In absence of bad faith or fraud to deprive attorney of reasonable fees, this sec­tion did not imply duty on the part of per­sonal representative to ap­peal award of attorney fees which attorney for estate deemed inadequate. Smith v. U.S. Na­tional Bank, 47 Or App 967, 615 P2d 1119 (1980), Sup Ct review denied

Fact that per­sonal representative was sole beneficiary did not preclude his recovery from estate of expenses and attorney fees which arose from good faith de­fense of will in court. Hurd v. Mosby, 54 Or App 713, 636 P2d 436 (1981)

Court may consider whether lawyer has breached professional duty when determining reasonableness of lawyer’s fee. Kidney Associa­tion of Oregon v. Ferguson, 315 Or 135, 843 P2d 442 (1992)

Law Review Cita­tions

26 WLR 285 (1990)

1 Legislative Counsel Committee, CHAPTER 116—Accounting, Distribution and Closing, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors116.­html (2017) (last ac­cessed Mar. 30, 2018).
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2017, Chapter 116, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano116.­html (2017) (last ac­cessed Mar. 30, 2018).
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.