Chapter 28

COL12010615GCA ESTATES AND PROBATE CH.28COMPENSATION 1CHAPTER 28 COMPENSA TION § 2801. Allowance of Expenses and Compensation; Compensation Provided by Will; Renunciation. § 2803. Commissions of Personal Representatives; Apportionment. § 2805. Additional Allowances for Extraordinary Services of Personal Repre senta tives. § 2807. Contracts for Higher Compensation V oid. § 2809. Allowance on Commissions of Personal Representative. § 2811. Attor ney's Fees. § 2813. Allowance on Attorney's Fees; Notice; Hearing. § 2801. Allowance of Expenses and Compensa tion; Comp ensatio n Provided by Will; Renuncia tion. The person al representa tive shall be allowed all necessary expenses in the care, manage ment, and settlement of the estate, and, for his services, the compensation provided in Sections 2803 and 2805 of this Title; but when the decedent, by his will, makes other provision for the compensation of the executor named therein, that shall be a full compensa tion for such executor's services, unless by a written instrument filed in the Superior Court, such executor reno unces all claim for compensation provided for in the will. SOURCE: Probate Code of Guam (1970), § 900. § 2803.

services, unless by a written instrument filed in the Superior Court, such executor reno unces all claim for compensation provided for in the will. SOURCE: Probate Code of Guam (1970), § 900. § 2803. Commissions of Personal Representa tives; Appor tionment. (a) The executor, when no compensation is provided by the will or he renounces all cla im ther eto as provided in Section 2801 of this Title, or the administrator, or the adminis trator with the will annexed, shall receive commis sions upon the amount of the estate accounted for by him, as follows: For the first five thousand dollars ($5,000 .00) at the rate of eight percent (8%); for the next ten thousand dollars ($10,000.00) at the rate of five percent (5%); for the next fifteen thousand dollars ($15,000.00) at the rate of four percent (4%); for the next twent y thousand dollars ($20,000.00) at the rate of three percent (3%); for the next one hundred thousand dollars ($100,000.00) at the rate of two percent (2%); for the next three hundred fifty thousand dol lars ($350,000.00) at the rate of one and one -half percent (1 2%); and for all above fi ve hundred thou sand dollars ($500,000.00) at the rate of one COL12010615GCA

three hundred fifty thousand dol lars ($350,000.00) at the rate of one and one -half percent (1 2%); and for all above fi ve hundred thou sand dollars ($500,000.00) at the rate of one COL12010615GCA ESTATES AND PROBATE CH.28COMPENSATION 2percent (1%); provided, that the allowance of such commission shall b e subject to the provisions of Section 2811(a) of this Title. If there are two or mor e personal representa tives, the com pensation shall be apportioned among them by the Superior Court according to the services actually render ed by each. (b) The commission to which the personal representa tive is entitled pursuant to subsection (a) of this Section shall be based upon the tot al amount of the inventory plus gains over apprais al value on sales, plus receipts, less losses on sales, without reference to encumbrances or other obligations on property in the estate, if any . This subsec tion shall apply whether or not a sale of prope rty has taken place during the administration of the estate. SOURCE: California Probate Code, § 901 (as amended); Guam Law Revision Commission. COMMENT : Two alterations have been made to § 901 of the Probate Code of Guam (1970).

administration of the estate. SOURCE: California Probate Code, § 901 (as amended); Guam Law Revision Commission. COMMENT : Two alterations have been made to § 901 of the Probate Code of Guam (1970). One is the addi tion of s ubsection (b), delin eating exactly what incre - ments of the estate the commission is to be based on. An identi cal provision was added to California law in 1965, and the Commission believes that it is a useful provision in Guam as well; the issue of whethe r encumbrances on estate property should be taken into consideration in deter mining the value of the estate for fixing the personal representative's commission, for exam ple, is one that should in the Commis sion's opinion be dealt with by legislation rat her than by court decision. The second alteration to § 901 of the Pro bate Code of Guam (1970) is the increase in the amounts of the commissions at the lower end of the scale. When taking testimony on this Title, the Commis sion was told by several practit ioners that the low amounts of commis sions (which, it should be noted, are the same as the amounts of attorney's fees allow able under prior § 910) often make it impracti - cal for an attorney to

it ioners that the low amounts of commis sions (which, it should be noted, are the same as the amounts of attorney's fees allow able under prior § 910) often make it impracti - cal for an attorney to serve as counsel for the personal representative in an estate of relatively low value. In recognition of this, the Commission has substantially raised the commissions at the lower end of the scale. Note, however, that in the range above $50,000, the percentages are the same under § 2803 as they were under prior § 901. The Commission believes that these rates are fair to person al representatives, as well as to estates of relatively small size. One problem that might be foreseen, however, is that under the Probate Code of Guam (1970), attorney's fees were the same as personal representatives' com - missions. Therefore, if the personal representative retains an attorney and both receive statutory commis sions, the estate must pay both. The Commission does not find that this is an egregious burden on most estates, and be lieves that it is relatively fair in the majority of cases, particularly since in many cases the personal representa tive waives his commission in any event.

egregious burden on most estates, and be lieves that it is relatively fair in the majority of cases, particularly since in many cases the personal representa tive waives his commission in any event. Where the problem may arise, however, is that situation wherein an attorney is appointed to be the personal representative of an estate, and performs both functions himself. In such case, the estate again ends up paying two sets of commissions --but here to the same person. COL12010615GCA ESTATES AND PROBATE CH.28COMPENSATION 3The Commission is of the opinion that this is unfair to most estates, in light of the fact that the attor ney's function is, in most cases, a much more time -consuming and difficult one than that of the personal representative. The Commission has therefore redrafted § 2811, infra, so that in the latter situation the attorney cum per sonal representative will not receive two sets of commis sions/ fees; he will receive only one and one -half times the single set of fees. The Commis sion believes that this plan is fair to all parties con cerned, including the attor neyand the estate. § 2805.

s/ fees; he will receive only one and one -half times the single set of fees. The Commis sion believes that this plan is fair to all parties con cerned, including the attor neyand the estate. § 2805. Additional Allowances for Extraordi nary Services of Personal Representatives. Such further allow ances, over and above those provid ed by Section 2803 of this Title, may be made as the Superior Court may deem just and reasonable for any extraordinary services per formed by the personal representative; provided, that no such further allowance shall be made when the dece dent, by his will, makes other provision for the com - pensation of the executor named therein, unless such executor renounces all claim theretoas provided in Section 2801 of this Title. As used in this Section, Aextraordinary services @may include, but is not limited to, sales or mortgages of real or personal property; contest ed or litigated claims against the estate; the adjustment and payment of extensive or compli - cated estate or inheritance taxes; litigation in regard to the property of the estate; the carry ing on of the decedent's business pursu ant to an order of the Superior Court; and such other litigation

ted estate or inheritance taxes; litigation in regard to the property of the estate; the carry ing on of the decedent's business pursu ant to an order of the Superior Court; and such other litigation or special services as may be necessary for the personal representative to prosecute, defend or perform. SOURCE: Probate Code of Guam (1970), § 902; Guam Law Revision Commission. COMMENT : The only substantive change from § 902 of the Probate Code of Guam (1970) is the addition of the language following the semicolon in the first sentence. The Commis sion has added this language to clarify the point that if the decedent has made provi sion by will for the compensation of the executor named therein, then the compensation provid ed for in the will is the sum total of such executor's compensa tion --unless, of course, the executor named in the will properly renounces his claim for compensation under the will as provided for in proposed § 2801, supra. § 2807. Contracts for Higher Co mpensation V oid. All contracts between a personal repre sentative and an heir, devisee or legatee, for a higher compensation than that allowed by Sec tions 2803 and 2805 of this Title, shall be void.

pensation V oid. All contracts between a personal repre sentative and an heir, devisee or legatee, for a higher compensation than that allowed by Sec tions 2803 and 2805 of this Title, shall be void. SOURCE: Probate Code of Guam (1970), § 903. § 2809. Allowance on Commissions of Personal Repre sentative.COL12010615GCA ESTATES AND PROBATE CH.28COMPENSATION 4Any personal representative, at any time after six (6) months from the issu ance of letters of testamentary , letters of admin istration or letters of administration with the will an nexed, and upon such no tice to the persons interested in the estate as the Superior Court shall require, may apply to the Superior Court for an allowance upon his commissions; and on the hearing the Superior Court shall make an order allowing him such portion of his commis sions , for services rendered up to that time, as the Superior Court shall deem proper, and the portion so allowed may b e thereupon charged against the estate. SOURCE: Probate Code of Guam (1970), § 904. § 281 1. Attorney's Fees. (a) The attorney for the person al representative shall be allowed out of the estate, as fees for conducting the ordinary probate proceedings, the same

f Guam (1970), § 904. § 281 1. Attorney's Fees. (a) The attorney for the person al representative shall be allowed out of the estate, as fees for conducting the ordinary probate proceedings, the same amount as is allowed by Section 2803 of this Title as the commission to the personal representative; pro vided, that if the personal representative is an attorney , and such attorney or any member, employee or shareholder of his law firm, part nership or professional corporation serves as the attorney for the personal repre sentative, then the commission which shall be allowed to the person al repre sentative, combined with the fees which shall be allowed to the attorney for con - ducting the ordinary probate proceed ings, shall be limited to one and one-half (12) times the amount allowed by Section 2803 of this Title as the commis sion to the personal representative. (b) Attorneys for personal representatives shall be allowed out of the estate, in addition to those fees provided in subsec tion (a) of this Section, such further amounts as the Superior Court may deem just and reasonable for ex traor dinary services.

allowed out of the estate, in addition to those fees provided in subsec tion (a) of this Section, such further amounts as the Superior Court may deem just and reasonable for ex traor dinary services. SOURCE: Probate Code of Guam (1970), § 910; Guam Law Revision Commission. COMMENT : The only substantive alteration made to § 910 of the Probate Code of Guam (1970) is the addi tion of the lan guage follow ing the semicolon in subsec tion (a). The purpose of this addition is to prevent the imposition of double com - missions/fees for less than double work on the part of a personal representative cum attorney . Also see Com ment to § 2803, supra. § 2813. Allowance on Attorney's Fees; Noti ce; Hearing. Any attorney who has rendered ser vices to a personal represen tative, at any time after six (6) months from the issuance of letters testamentary , letters of administration or letters of administration with the will COL12010615GCA ESTATES AND PROBATE CH.28COMPENSATION 5annexed, and upon such noti ce to the personal representative and to the persons interested in the estate as the Superior Court shall require, may apply to the Superior Court for an allowance upon his fees; and on the

such noti ce to the personal representative and to the persons interested in the estate as the Superior Court shall require, may apply to the Superior Court for an allowance upon his fees; and on the hearing the Superior Court shall make an order requiring the perso nal representative to pay such attorney out of the estate such compensation, on account of services rendered up to that time, as the Superi or Court shall deem proper, and such payment shall be made forthwith. SOURCE: Probate Code of Guam (1970), § 911. COMMENT : Aside from minor changes in language, § 2813 is substantial lythe same as § 911 of the Probate Code of Guam (1970). See In the Matter of the Estate of Charles O. Kile , District Court of Guam Civil Appeal No. 77 -19A(January 8, 1979), which holds t hat the notice and hearing provisions of prior § 911 are manda - tory on an attorney seeking an advance on his fees. ----------