Printable Format59-1504. Compensation and expenses. Whenever a decedent by will makes a provision for the compensation of his or her executor, that shall be taken as such executor's full compensation, unless the executor files a written instrument, renouncing all claim to the compensation provided for in the will. Whenever any person named in a will or codicil defends it, or prosecutes any proceedings in good faith and with just cause, for the purpose of having it admitted to probate, whether successful or not, or if any person successfully opposes the probate of any will or codicil, such person shall be allowed out of the estate his or her necessary expenses and disbursements in such proceedings, together with such compensation for such person's services and those of his or her attorneys as shall be just and proper.
Any heir at law or beneficiary under a will who, in good faith and for good cause, successfully prosecutes or defends any other action for the benefit of the ultimate recipients of the estate may be allowed his or her necessary expenses, in the discretion of the court, including a reasonable attorney's fee.
History: L. 1939, ch. 180, § 115; L. 1941, ch. 284, § 16; L. 1975, ch. 299, § 11; January 1, 1976.
Source or prior law:
22-317, 22-919, 22-920, 38-227, 62-2024.
Cross References to Related Sections:
Compensation and expenses of fiduciary and attorneys, see 59-1717.
Law Review and Bar Journal References:
1963-65 survey of damages, David Prager, 14 K.L.R. 241, 248 (1965).
"A Practical Review of the 1975 Kansas Probate Code Revisions," Philip S. Frick, 44 J.B.A.K. 137, 182 (1975).
"Recovery of Attorney Fees in Kansas," Mark A. Furney, 18 W.L.J. 535, 561 (1979).
"Survey of Kansas Law: Wills, Trusts, and Probate," 29 K.L.R. 595, 602 (1981).
"Will Substitutes in Kansas," Jana J. Deines and Michael E. McMahon, 23 W.L.J. 132 (1983).
"Attorney Fees: The Meaning of 'Successfully Opposes the Probate of a Will' For a Grant of Attorney Fees Under Kan. Stat. Ann. § 59-1504," Lillian Apodaca, 23 W.L.J. 399, 404, 405, 406, 407, 408 (1984).
"Will Contests in Kansas," Dennis M. Feeney & Jeffery L. Carmichael, 64 J.K.B.A. No. 7, 22, 23 (1995).
CASE ANNOTATIONS
1. Lack of good faith in prosecuting probate of will; costs taxed against proponents. In re Estate of Casida, 156 K. 73, 78, 131 P.2d 644.
2. Attorney's fees incurred in prosecuting suit for specific performance of contract disallowed. In re Estate of Davis, 171 K. 605, 606, 613, 237 P.2d 396.
3. Action to include property in inventory successful; attorney fee properly allowed. In re Estate of Rooney, 186 K. 200, 203, 349 P.2d 916.
4. Facts considered and allowance of partial attorneys' and executors' fees upheld. In re Estate of Snyder, 188 K. 46, 49, 360 P.2d 883.
5. District court has authority to allow attorney fees in defense of a will. In re Estate of Roberts, 192 K. 91, 92, 101, 102, 386 P.2d 301.
6. Where meritorious action brought to construe will, attorney fees allowed hereunder. Baldwin v. Hambleton, 196 K. 353, 361, 411 P.2d 626.
7. Issues involving attorney fees determined in In re Estate of Roberts, 192 K. 91, held res judicata, Coffey, Administrator v. Gilbert, 204 K. 305, 307, 461 P.2d 747.
8. District court authorized to make allowance for attorney's fee under the statute. In re Estate of Showers, 207 K. 268, 275, 485 P.2d 299.
9. Cited; attorney fees incurred by beneficiaries to determine validity of antenuptial contract generally not chargeable against estate. In re Estate of Murdock, 213 K. 837, 850, 854, 519 P.2d 108.
10. Allowance of attorney fees approved; payable from trust income; action to construe testamentary trust provisions of will. In re Estate of Hannah, 215 K. 892, 900, 529 P.2d 154.
11. Attorney fees not chargeable against estate of decedent where action to enforce contract as claim against estate. Reznik v. McKee, Trustee, 216 K. 659, 681, 534 P.2d 243.
12. Attorney fees allowed as costs of litigation; action settled roles of trustee and beneficiaries. Jennings v. Murdock, 220 K. 182, 183, 215, 553 P.2d 846.
13. Allowance of attorney fees directed; services were beneficial and necessary for proper consideration of will. In re Estate of Mellott, 1 K.A.2d 709, 721, 574 P.2d 960.
14. Unsuccessful contest of will not part of proceeding to probate prior will; duty to produce prior will under 59-618 not justification for payment of expenses of contest. In re Estate of Carothers, 3 K.A.2d 156, 158, 591 P.2d 1091.
15. The term "successfully opposes" construed as ultimate resolution of issue; requirement applied to attorney fees and expenses. In re Estate of Robinson, 232 K. 752, 754, 659 P.2d 172 (1983).
16. Cited in holding compromise and settlement generally bars preexisting claims tied to settled estate and will dispute. In re Estate of Engels, 10 K.A.2d 103, 107, 692 P.2d 400 (1984).
17. No intention that fee based on contingency dependent on success; court need only establish employment, not terms thereof. In re Estate of Robinson, 236 K. 431, 439, 690 P.2d 1383 (1984).
18. Attorney fees allowed where contesting final settlement in good faith and for cause increased estate by $278,000. In re Estate of Jud, 238 K. 268, 278, 279, 710 P.2d 1241 (1985).
19. Facts sufficient to justify allowance of attorney fees to heir at law or beneficiary examined. In re Trusteeship of the Will of Daniels, 247 K. 349, 357, 799 P.2d 499 (1990).
20. Award of attorney fees to appellants where Supreme Court reversed trial court decision noted. In re Estate of Raney, 247 K. 359, 376, 799 P.2d 986 (1990).
21. Attorney fees not awarded because petitioner's claim was not successful. In re Estate of Mildrexter, 25 K.A.2d 834, 971 P.2d 758 (1999).
22. As will contest was not successful, party contesting will was not entitled to attorney fees. In re Estate of Haneberg, 270 K. 365, 14 P.3d 1088 (2000).
23. Absent express statutory authority court cannot order payment of attorney fees from decedent's estate. In re Estate of Gardiner, 29 K.A.2d 158, 23 P.3d 902 (2001).
24. In an award of attorney fees to a party who successfully opposes probate of a will, a party's bad faith is irrelevant, only determination should be reasonableness of the amount requested. In re Estate of Strader, 301 K. 50, 61, 339 P.3d 769 (2014).