How Is My Portion of the Attorney Fees Determined When the Scope of Representation Shifts from Probate Administration to Handling a Partition Action in North Carolina?
1. Detailed Answer
When you first hire an attorney for estate administration in North Carolina, the fees for that work—gathering assets, paying debts, filing the will, and distributing property—usually fall under the fee allowance in N.C. Gen. Stat. § 28A-26-1. Once you need a partition action, the nature of the work changes. Your attorney must update the written fee agreement or add an engagement letter that covers the new scope: drafting pleadings under Chapter 46, selecting commissioners, handling the sale in kind or at public auction, and distributing proceeds among co-owners.
If you file the partition action in the same court as the probate matter, the judge can approve additional fees on the probate docket. N.C. Gen. Stat. § 28A-26-1(d)(3) specifically allows the court to award reasonable compensation for services required by the personal representative that go beyond ordinary probate tasks, including partition sales or in-kind distributions. The court will review time records, the complexity of the case, and the benefit to the estate.
More commonly, partition actions run as separate civil cases. In that setting, you pay partition fees under your new fee agreement. The cost of commissioners’ services and court filing fees become “costs of the proceeding” under N.C. Gen. Stat. § 46-22. The statute directs the court to charge those costs, including attorney fees if the court so orders, to each joint owner in proportion to his or her interest in the property. In practice, if you own 25 percent of the property being partitioned, you bear roughly 25 percent of those costs and fees, unless you and your co-owners agree otherwise in writing.
Key steps to ensure clarity:
- Obtain a written fee agreement or amendment whenever the representation scope changes.
- Keep detailed time records and invoices that separate probate tasks from partition tasks.
- Ask the court, when approving fees under § 28A-26-1 or § 46-22, to allocate fees based on each heir’s share of the property.
- Review the order for distribution or sale proceeds to confirm the correct amount withheld for attorney fees from your share.
2. Key Considerations
- Fee Agreements: Always update your engagement letter when adding new tasks.
- Statutory Allowances: Probate fees fall under N.C. Gen. Stat. § 28A-26-1; partition costs follow N.C. Gen. Stat. § 46-22.
- Allocation by Interest: Courts typically charge costs in proportion to each heir’s ownership percentage.
- Benefit to the Clients: Fees should reflect the work done and the value you receive.
- Court Approval: If the partition runs through the probate docket, ask the judge to award fees on the probate record.
- Settlement Agreements: Co-owners can agree to a different split of costs or a lump-sum arrangement.
Need Help with Probate or a Partition Action?
Shifting from probate administration to a partition action raises important questions about how fees break down. At Pierce Law Group, we handle both probate and related partition matters every day. If you need clear answers and reliable representation, reach out today. Email us at intake@piercelaw.com or call us at (919) 341-7055. Let our experienced attorneys guide you through the process and protect your interests.
