In re Brinkman

In re Brinkman, FLWSUPP 2010BRIN

The decedent died in 2007, leaving no will, and no assets other than a potential medical malpractice/wrongful death suit.  The surviving spouse, along with the decedent's two adult daughters, were his only heirs.  The surviving spouse was appointed personal representative of the estate, and she hired a law firm on a contingency basis to represent the estate in the wrongful death litigation.  She also hired a different law firm to represent her in the probate estate.

The law firm representing the personal representative in the probate estate used a fee agreement which provided that they would be paid 3% of the estate.  It also provided that in cases where the personal representative pursues a claim or files a lawsuit, the attorneys fees would be calculated based on the net recovery of that lawsuit. 

The wrongful death suit settled for $750,000, with a net recovery of approximately $434,000.  The law firm handling the probate estate claimed it was entitled to 3% of that recovery.  The Court held that F.S. 733.6171(2) does not allow an attorney representing the personal representative with respect to the administration of the estate to base its fees on a recovery outside of the estate's statutory right to recovery in the wrongful death suit pursuant to F.S. 768.21(6), since the estate was also represented by attorneys who were litigating that claim. The court was not persuaded by the fact that at all times the law firm handling the estate administration knew about the wrongful death proceeding or that an estate proceeding was required for that wrongful death proceeding to occur.

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