In re Estate of Weeks

NO. 4-10-0338 Opinion Filed 5/20/11

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

In re: the Estate of RONALD D. WEEKS, ) Appeal from
Deceased, ) Circuit Court of
DAVID W. HAMMER, Independent Executor ) McLean County
of the Estate of RONALD D. WEEKS; and ) No. 08P78
THOMAS L. BRUCKER, )
Petitioners-Appellants, )
v. )
THE PEOPLE OF THE STATE OF ILLINOIS ex )
rel. LISA MADIGAN, Attorney General of ) Honorable
Illinois, ) Stephen R. Pacey,
Intervenor-Appellee. ) Judge Presiding.
_________________________________________________________________

PRESIDING JUSTICE KNECHT delivered the judgment of the
court, with opinion.
Justices Turner and Pope concurred in the judgment and
opinion.
OPINION

In April 2008, petitioner, David W. Hammer, was ap-

pointed independent executor of decedent Ronald D. Weeks's

estate. Hammer hired petitioner, Thomas L. Brucker, to serve as

his attorney with respect to administering the estate. In their

final accounting of the estate, petitioners indicated they had

withdrawn fees from the estate in the amount of $120,000 for

executor Hammer and over $170,000 for attorney Brucker.

Intervenor, the Attorney General of Illinois, objected to the

requested fees on behalf of an out-of-state charity. After a

hearing, the trial court reduced the fees for executor Hammer to

$37,500 and those for attorney Brucker to $75,000 and otherwise

approved the final accounting. The court ordered petitioners to

refund the excess fees withdrawn from the estate.
 On appeal, petitioners argue the trial court erred in

its interpretation of what constitutes a "reasonable" fee under

sections 27-1 and 27-2 of the Probate Act of 1975 (Act) (755 ILCS

5/27-1, 27-2 (West 2008)). Petitioners assert the court errone-

ously concluded the Act per se prohibits attorneys and executors

from charging a fee based on a percentage of the estate's gross

value. Intervenor responds the court applied the appropriate

factors based on controlling precedent and correctly determined

petitioners' requested fees were unrelated to the value of the
work petitioners performed in administering the estate. We

affirm.

I. BACKGROUND

In March 2008, Ronald D. Weeks died testate. The gross

value of Weeks's estate was $4,024,361. The value of Weeks's

probate assets was $3,042,706.16. The nonprobate assets were

largely comprised of payable on death (POD) assets and joint
accounts held by Weeks and another person. In his will, Weeks

made several specific bequests and divided his residuary estate

among three beneficiaries: 50% to Teri Witten, 25% to Charles

Schott, and 25% to Disabled and Alone Life Services for the

Handicapped, Inc., a New York charity. Weeks's will named Hammer

as the executor of his estate, and Hammer later hired Brucker as

his attorney with respect to estate-administration matters. In

April 2008, the will was admitted to probate and letters of

office were issued to executor Hammer, who was appointed inde-

pendent administrator of the estate.

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 Weeks's probate assets consisted of cash, certificates

of deposit, a residence, farmland, a farmstead, and personal

property. Petitioners had Weeks's real estate appraised.

Weeks's residence was initially appraised at $145,000. A real

estate agent estimated the sale price would be between $100,000

and $105,000. After petitioners discovered a deficiency in its

foundation, Weeks's house was reappraised at $125,000. When the

real estate agent received bids of no higher than $106,000 with a

$6,000 limit on repairing the foundation flaw in the basement,
petitioners transferred the residence in kind to Schott, the

residuary beneficiary, as part of his share of the estate's

residue at a value of $101,000. In connection with the transfer,

the estate paid a 6% commission and $500 in legal fees.

Weeks's farmland was initially appraised at $2,076,450,

or $5,324.23 per acre. Petitioners decided they could sell it,

divided into two parcels, for more than the appraised value by
conducting a sealed-bid auction before the deadline for filing

the estate-tax return in December and before the crop was har-

vested. Attorney Brucker conducted the auction. He sought a

minimum bid of $6,500 per acre. One parcel sold for $1,527,500,

or $6,500 per acre, and the other for $990,168.75, or $6,525 per

acre. Brucker received an attorney fee of 2% of the sale price,

or a total of $50,353.37, for acting as auctioneer.

The will granted Weeks's farm tenant and his wife an

option to purchase the farmstead at its appraised value. The

tenant initially rejected the option but later changed his mind

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and purchased the farmstead for $173,000 after petitioners had it

surveyed to ensure the purchased land included a certain hedgerow

the tenant found desirable. The estate paid $900 in legal fees

for this transaction.

In December 2008, executor Hammer filed federal and

state estate-tax returns. These filings were accepted by the

Internal Revenue Service (IRS) and intervenor, respectively, and

Hammer was accordingly discharged of his personal liability for

the state estate tax.
In July 2009, petitioners served an accounting of

Weeks's probate estate's receipts and disbursements on Weeks's

heirs and legatees. The accounting showed gross receipts of

$3,042,706.16, including bank holdings and proceeds from the

sales of Weeks's real and personal property. The estate had

disbursed $2,333,365.46, including $120,000 each distributed to

petitioners for attorney and executor fees and partial distribu-
tions of the estate's residue ($800,000 to Witten and $400,000

each to Schott, including the in-kind transfer of the residence,

and Disabled and Alone). Attorney Brucker's $120,000 in attorney

fees was in addition to the fees he collected in connection with

the real-estate sales. In July and August 2009, residuary

beneficiaries Schott and Witten entered their appearances in the

probate matter, waived the filing of an accounting, and consented

to and petitioned for the discharge of Hammer as "Independent

Executor."

In July 2009, after receiving petitioners' accounting,

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Brian Andrew Tully, an attorney for Disabled and Alone, inquired

into the appropriateness of the fees withdrawn by petitioners.

Tully asked attorney Brucker to provide Disabled and Alone with a

copy of petitioners' retainer agreement and "a detailed explana-

tion as to fees and disbursements, including hours billed and

hourly rates." Tully expressed surprise regarding the size of

the executor fees, explaining an executor in New York would

receive approximately $85,000 for administering an estate the

size of Weeks's. Brucker responded, "With respect to attorneys'
fees and executor's fees paid, the fees were based upon 3% of the

gross estate of $4,024,361.00, which is the standard rate when an

estate is this large and a [federal estate-tax] Form 706 return

is required." Tully responded, again requesting a copy of

petitioners' retainer and questioning petitioners' decision to

base their fee on the value of the gross taxable estate rather

than the probate estate. Tully noted, "This practice is unusual,
as non-probate assets pass by operation of law and are therefore

not considered part of the estate administration. Also, Execu-

tor's [sic] commissions are usually based on the assets actually

received and accounted for by the Executor."

Later, in another letter, Tully requested a copy of the

estate's federal estate-tax return and informed Brucker the

default rule in New York was for tax-exempt organizations not to

bear any of the estate tax, which petitioners had apportioned

among the residuary beneficiaries in proportion to their shares

under the will. Brucker refused the requests for copies of the

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retainer and the tax return and again informed Tully of his

standard practice of charging 3% of the gross estate where a tax

return is required, noting (1) his fees had been accepted by the

IRS and probate courts and (2) "[n]umerous other attorneys in the

area adopt a similar fee schedule."

In September 2009, executor Hammer filed his final

report with the trial court, requesting the estate be closed. In

the report, Hammer stated "reasonable" executor and attorney fees

had been paid and these fees had been "approved by all interested
persons." Later that month, intervenor petitioned to intervene

on behalf of Disabled and Alone pursuant to section 2-408 of the

Code of Civil Procedure (735 ILCS 5/2-408 (West 2008)).

Intervenor sought to move to terminate independent administration

of Weeks's estate and sought an inventory and an accounting,

including a full accounting of petitioners' fees. Intervenor

also filed a "MOTION TO WITHHOLD APPROVAL OF EXECUTOR'S FINAL
ACCOUNT UNTIL INVENTORY AND ACCOUNTING ARE FILED WITH THE COURT

AND SERVED ON THE ILLINOIS ATTORNEY GENERAL."

In October 2009, executor Hammer filed a response to

intervenor's pleadings. Hammer asked the trial court to dismiss

the pleadings and "prohibit the Attorney General from entering in

this case as a matter of right." Hammer argued intervenor was

petitioning on behalf of an out-of-state corporation rather than

on behalf of the people of Illinois. Alternatively, Hammer

argued intervenor waived any objections to the requested executor

and attorney fees by issuing a discharge of Hammer's estate-tax

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liability. Hammer filed with the court the July 2009 inventory

and accounting.

Later in October 2009, following a hearing, the trial

court granted intervenor's petition to intervene and terminated

independent administration of the estate. That same month,

intervenor filed an objection to the accounting and to the

approval of the final report, challenging the amount of the

requested executor and attorney fees. Specifically, intervenor

challenged the $120,000 fees paid to each petitioner and the
$50,353.37 fee paid to attorney Brucker in connection with the

sale of the farmland.

In December 2009, the trial court held a hearing on

intervenor's objection. The evidence before the court consisted

of 17 exhibits and testimony by petitioners' expert, attorney

Thomas Herr, and each petitioner. Among the exhibits, each of

petitioners' witnesses presented affidavits, the contents of
which were covered in their testimony.

Herr testified he had been practicing law for 17 years

concerning trusts, estates, tax, and business planning. He

worked on estates ranging in value from insolvency to more than

$20 million. It was customary in his practice and among attor-

neys in Livingston and Ford Counties to charge a percentage of

the gross value of the estate. Regarding the type of fee

charged, Herr said, "I've seen ranges based on a local bar fee

schedule to a flat percentage of the estate, graduated percent-

age, so it[--]and an hourly basis, so it's all over--it's all

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across the board in terms of what I've seen being charged in

estates." Herr testified his hourly rate for complex estates was

$275. He said an "average estate" consists of transferring

assets and clearing the title to real estate. In contrast, a

"complex estate," according to Herr, may involve preparing an

estate-tax return, which "can take a hundred or more hours of

work or in excess of that," performing a special-use valuation,

or handling income-tax issues, will contests, or charitable

bequests.
Attorney Brucker testified regarding his experience as

an estate lawyer and the work he performed in helping executor

Hammer administer Weeks's estate. Brucker testified his hourly

rate for estate work was $250 to $300. He said he typically

charges 3% of the gross value of an estate if a federal estate-

tax return is required. Brucker testified to having known Weeks

"for many, many years" and having "handled" the estates of
Weeks's mother and wife, while Brucker's firm had "handled"

Weeks's father's estate. He testified to performing work for the

estate as summarized above, including work done in transferring

personal and real property, preparing and filing tax-related and

other legal documents, unsuccessfully defending a $2,000 claim

against the estate, and drafting and mailing correspondence.

He testified to time constraints in meeting filing

deadlines with respect to tax forms which, according to Brucker,

imposed corresponding time concerns in selling Weeks's real

estate. Brucker asserted his billing the estate for 2% of the

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value of Weeks's farmland for conducting the sealed-bid auction

was "customary and appropriate." He estimated his selling the

property himself and charging a 2% fee saved the estate $25,000.

Brucker directed the trial court's attention to several

prior probate cases. He testified he collected fees in some of

the cited trial-level cases ranging from 2.5% to 3.2%. None of

those fees was subject to objection by a beneficiary. He also

pointed out the court itself approved a fee at a rate of $300 per

hour in a previous case.
On cross-examination, intervenor inquired into an

exhibit purporting to be a group of billing statements. Brucker

testified these statements were not actually bills. They were

partly a running tabulation of work performed for the estate and

partly a reconstruction by Brucker's secretary. Brucker did not

keep time records for work done on Weeks's estate as he planned

to bill on a "percentage basis" since a federal estate-tax return
was required.

Executor Hammer testified regarding his duties in

administering Weeks's estate. Hammer had been vice president and

trust officer of a bank in Fairbury, Illinois, for 16 years. As

a trust officer of the bank, Hammer worked as executor on "ap-

proximately a dozen" estates ranging in value from a few thousand

dollars to $7 million. Hammer testified to his involvement in

accounting for, managing, and distributing Weeks's estate's

assets. He continued to work full time for the bank while

administering Weeks's estate, traveling between Fairbury and

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Weeks's residence in Normal in the evening or on a weekend two to

three times each week. With respect to the tasks listed in

Hammer's affidavit in support of his executor fees, Hammer

testified he constructed the list from files and notes he kept of

his work for the estate. Hammer estimated he spent between 500

and 600 hours administering Weeks's estate. It did not occur to

Hammer to maintain time records with respect to the estate's

administration because it was customary of his bank's trust

department to bill on a graduated scale, based on the size of the
estate, between 2.5% and 5% of the estate's gross value.

After the parties' arguments, the trial court remarked

orally about the evidence and arguments. The court rejected

testimony of petitioners' expert stating a reasonable fee could

be established by reference to a fee schedule. The court found

such reliance on fee schedules was precluded by Goldfarb v.

Virginia State Bar, 421 U.S. 773 (1975). The court noted the
expert did not testify he reviewed the work done for Weeks's

estate nor did he give an opinion as to the reasonableness of the

requested fees. The court noted the sale of farmland at auction

for more than its appraised value may have benefitted the estate,

but the benefit accrued from the sale should have inured to the

estate and not to attorney Brucker in the form of an "additional"

2% fee.

In its February 2010 written order, the trial court

made specific findings with respect to each of the factors it

considered relevant in determining a reasonable fee for each

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petitioner. The court considered "factors on which evidence was

introduced, as well as the Court's own knowledge of the value of

services rendered in probate cases." Regarding attorney Brucker,

the court found as follows:

"[T]he size of this estate was above average,

the work done was completed in a timely and

(excepting the sealed bid sale of farmland)

professional manner, the time required (no

time records having been kept) should not
have exceeded 300 hours, no special advantage

was gained or sought by the estate, the

amount of compensation is not sought in good

faith and the reasonable hourly rate for

attorney's fees in this type of case is

$250.00 per hour."

Regarding executor Hammer, the court found:
"[T]he size of this estate was above average,

the services rendered were not unusual, the

responsibilities undertaken were ordinary,

the degree of difficulty was average, there

was little risk involved, no unusual knowl-

edge or skill was required, the degree of

expertise of the executor is well above aver-

age, the estimated time (no records having

been kept) appears to exceed what should have

been required, the amount of compensation is

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 not sought in good faith and the reasonable

hourly rate for an individual executor with

experience in this type of case is $75.00 per

hour."

Accordingly, the court awarded attorney fees in the amount of

$75,000 and executor fees in the amount of $37,500. The court

ordered petitioners to refund to the estate any fees withdrawn in

excess of the awarded amounts within 30 days, approved the final

account in all other respects, stated no other fees were to be
paid from the estate without a petition accompanied by detailed

time records and court approval, and precluded petitioners from

using estate funds to pursue an appeal. The order thus required

Brucker to refund $95,000 and Hammer to refund $82,500.

In April 2010, the trial court denied petitioners'

motion to reconsider and granted petitioners' motion to stay

enforcement.
This appeal followed.

II. ANALYSIS

On appeal, petitioners argue the trial court erred in finding their requested

fees unreasonable. Petitioners assert the court erroneously found it per se

unreasonable for an executor and his attorney to base their fees on a percentage of the

estate=s value. Intervenor responds this court lacks jurisdiction because of a deficiency

in petitioners= notice of appeal and, alternatively, the court applied the appropriate

factors for determining a reasonable fee and did not err. Petitioners reply, with respect

to intervenor=s jurisdiction argument, any deficiency in their notice of appeal was

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technical and does not deprive this court of its appellate jurisdiction. We reject

intervenor's jurisdiction argument but agree with intervenor=s argument the court did not

err.

A. Jurisdiction

We first address intervenor=s jurisdiction argument. See Secura

Insurance Co. v. Illinois Farmers Insurance Co., 232 Ill. 2d 209,

213, 902 N.E.2d 662, 664 (2009) ("A reviewing court must

ascertain its jurisdiction before proceeding in a cause of
action, regardless of whether either party has raised the is-

sue."). Intervenor argues this court lacks jurisdiction because the party named in

the notice of appeal, the estate of Ronald D. Weeks, lacks standing to appeal.

Intervenor claims petitioners should have been the named appellants. Petitioners

respond the deficiency in the notice of appeal is merely "a technical misnomer, which

does not justify the dismissal of this appeal." We agree with petitioners.

Jurisdiction in this court is conferred by a notice of appeal. Ill. S. Ct. R.

301 (eff. Feb. 1, 1994). Illinois Supreme Court Rule 303 (eff. May 30, 2008) sets forth

specific formatting and filing requirements of the notice of appeal. Among other things,

a notice of appeal must name the parties and designate them "in the same manner as in

the circuit court and add[ ] the further designation 'appellant' or 'appellee'" (Ill. S. Ct. R.

303(b)(1)(ii)) and must "contain the signature and address of each appellant or

appellant's attorney" (Ill. S. Ct. R. 303(b)(4)). However, "Illinois courts have repeatedly

refused to dismiss an appeal because of a technical deficiency in the notice of appeal

so long as the notice fulfills its basic purpose of informing the victorious party that the

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loser desires a review of the matter by a higher court." In re Estate of Weber, 59 Ill.

App. 3d 274, 276, 375 N.E.2d 569, 570 (1978).

Petitioners= failure to name themselves as appellants in the notice of

appeal, while technically deficient, did not deprive intervenor of the notice to which she

was entitled. Intervenor does not allege she was prejudiced in any way by petitioners=

naming the estate rather than themselves as appellants. We will address the merits of

petitioners= argument.

B. "Reasonable Compensation"

We consider petitioners= argument the trial court erred by holding an

executor and his attorney are per se precluded from basing their fees for administering

an estate on a percentage of the estate=s value. Intervenor maintains the court relied on

appropriate precedent in concluding petitioners= requested fees were unreasonable.

The court applied the relevant factors in determining the reasonableness of petitioners=

requested fees, and we agree with intervenor.

In general, "[a] trial court has broad discretionary powers in awarding

attorney fees and its decision will not be reversed on appeal unless the court abused its

discretion." In re Estate of Callahan, 144 Ill. 2d 32, 43-44, 578 N.E.2d 985, 990 (1991).

But cf. In re Estate of Coleman, 262 Ill. App. 3d 297, 299, 634 N.E.2d 314, 316 (1994)

("The trial court has broad discretion in determining what constitutes 'reasonable'

compensation. [Citation.] Because the probate court has the requisite skill and

knowledge to decide what is fair and reasonable compensation [citation], a probate

court=s determination of such fees will not be overturned on appeal unless it is

manifestly and palpably erroneous." (Internal quotation marks omitted.)). Insofar as

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petitioners claim the trial court made an error of law, our review is de novo. See Beehn

v. Eppard, 321 Ill. App. 3d 677, 680-81, 747 N.E.2d 1010, 1013 (2001) ("Where a trial

court's exercise of discretion relies on an erroneous conclusion of law, *** our review is

de novo.").

Under the Probate Act, executors and their attorneys are entitled to

"reasonable compensation" for their administration of the estate. 755 ILCS 5/27-1, 27-2

(West 2008). What constitutes reasonable compensation in relation to the value of the

services rendered must be determined on a case-by-case basis. In re Estate of Thorp,

282 Ill. App. 3d 612, 619, 669 N.E.2d 359, 364 (1996). "The factors to be considered

include the size of the estate, the work involved, the skill evidenced by the work, [the]

time expended, the success of the efforts involved, and the good faith and efficiency

with which the estate was administered." Id.; see also In re Estate of Jaysas, 33 Ill.

App. 2d 287, 292, 179 N.E.2d 411, 413 (1961) ("Good faith, diligence and reasonable

prudence should be included, so as to prevent, on the one hand, excessive charges,

and, on the other hand, inadequate allowances."). These considerations apply to

compensation for executors and their attorneys alike. See, e.g., Thorp, 282 Ill. App. 3d

at 620, 669 N.E.2d at 364-65 (applying the factors to an executor's fee petition); Jaysas,

33 Ill. App. 2d at 293-94, 179 N.E.2d at 414 (applying the factors to attorneys' fee

petition).

The most important factor is the amount of time spent on the estate. Coleman,

262 Ill. App. 3d at 299, 634 N.E.2d at 316. Ideally, the petitioners will present

contemporaneously made, detailed time records as evidence of "the services per-

formed, by whom they were performed, the time expended thereon and the hourly rate

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charged therefor." (Internal quotation marks omitted.) In re Estate of Bitoy, 395 Ill. App.

3d 262, 273, 917 N.E.2d 74, 83 (2009). If such records are unavailable, the trial court

can approximate the amount of time such tasks should require by using its particular

knowledge of probate matters. Id. at 272-73, 917 N.E.2d at 82; see also Jaysas, 33 Ill.

App. 2d at 293, 179 N.E.2d at 413 ("[The probate court] should, to a great extent,

exercise an independent judgment in determining attorneys' fees to be paid out of a

decedent's estate.").

Petitioners presented no evidence of the time spent administering

Weeks=s estate although executor Hammer estimated he spent over 500 hours. They

each testified extensively to the work they performed. The trial court, considering the

relevant evidence, determined some of petitioners' work overlapped. Noting especially

attorney Brucker=s involvement in the auction sale of Weeks=s farmland for which he

charged the estate 2% of the land=s value for auction services while charging 3% of the

land=s value as part of his overall fee, the court found petitioners performed duplicative

work and did not seek their fees in good faith. Petitioners presented no testimony

characterizing the work performed on Weeks's estate as unusual or complicated. The

court found, based on petitioners= testimony and their expert's failure to give an opinion

as to the reasonableness of the fees sought, attorney Brucker should have spent no

more than 300 hours working for the estate and executor Hammer should have spent

no more than 500 hours. Based on its own knowledge, and within a range consistent

with testimony by Brucker and petitioners' expert Herr regarding their hourly billing

rates, the court found a reasonable hourly fee for attorney Brucker would have been

$250 and for executor Hammer $75. The court's analysis is consistent with precedent,

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and we conclude the court did not abuse its discretion.

Petitioners argue the trial court relied on an erroneous proposition of law.

Namely, petitioners contend the court erroneously relied on Goldfarb in ruling

petitioners' requested fees were not reasonable. In Goldfarb,

421 U.S. at 781, 792-93, the Supreme Court held a state bar

association's employment of a mandatory fee schedule enforced

upon all attorneys throughout the state violated federal

antitrust laws prohibiting price fixing. We disagree with

petitioners' contention the court misapplied Goldfarb.

Petitioners' case for charging a percentage of the

gross value of Weeks's estate consisted of, on attorney Brucker's

behalf, evidence a 3% fee was usual and customary for estates the

size of Weeks's with reference to the Livingston County Bar

Association's fee schedule and to Brucker's own practice and, on

executor Hammer's behalf, evidence the bank where Hammer worked

as trust officer charged estates on a percentage basis between

2.5% and 5% of the estate's gross value, depending on its size.

The court relied on Goldfarb for the limited purpose of discred-

iting Brucker's evidence his 3% fee was supported by a local bar

association's fee schedule. If the court accepted this evidence

and had not relied on Goldfarb, the court could still have

concluded the requested fees were unreasonable, despite being

usual and customary, as the reasonableness of a fee is determined

with respect to the factors relied upon by the trial court.

Petitioners' cited cases are not compelling. The first

case petitioners cite is In re Estate of Parlier, 40 Ill. App. 3d

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840, 354 N.E.2d 32 (1976). In that case, decided shortly after

Goldfarb, the executors' attorney requested fees based on a

percentage of the estate's value. Id. at 841, 354 N.E.2d at 34.

The attorney fees were set in reference to an advisory fee

schedule promulgated by a local bar association. Id. The

objector argued the attorney fees should have been computed as if

the attorney were billing on an hourly basis. Id. at 842, 354

N.E.2d at 35. This court disagreed, stating:

"Some lawyers have decided that the fairest
and best way to charge for probate work is on

an hourly basis. None of the lawyers here,

however, testified to such a practice and no

case has been called to our attention that

requires such a method. The hourly rate

procedure does not take into consideration

that the greater the value of the property
involved, the greater the responsibility of

the lawyer. It tends to reward the slower

practitioner and does not recognize that a

lawyer spends time even in leisure moments

pondering the problems of his client. The

failure to keep time records or to closely

relate the fee requested to charges for other

work that would have required a similar ex-

penditure of time did not negate the reason-

ableness of the fee charged." Id.

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The court rejected the objector's argument Goldfarb prohibited

the attorney from establishing his fee by reference to a fee

schedule, distinguishing its case from Goldfarb as the fee

schedule was not compulsory and was not shown to be followed

uniformly. Id. at 843, 354 N.E.2d at 35. The court considered

the fee schedule as valuable evidence of the usual and customary

fee. Id. at 843, 354 N.E.2d at 35-36. This court upheld the

trial court's award of the requested fee. Id. at 844, 354 N.E.2d

at 36.
This case is distinguishable from Parlier in at least

three respects. First, Goldfarb is no longer recent precedent.

In Parlier, 40 Ill. App. 3d at 843, 354 N.E.2d at 35-36, this

court stated, "Unquestionably past issuance of a bar association

fee schedule has a bearing on the present customary charges made.

The effect of Goldfarb will in time reduce this." The passage

of time since Goldfarb was decided draws Parlier's relevance into
question with respect to its permissive reliance on fee sched-

ules.

Second, and relatedly, in Parlier, 40 Ill. App. 3d at

843, 354 N.E.2d at 35-36, we relied on an American Bar Associa-

tion disciplinary rule, inflating the importance of usual and

customary charges in the balancing of the factors to be consid-

ered in setting a "reasonable" fee under the Act. While the

disciplinary rule quoted in Parlier and the relevant current rule

(Ill. S. Ct. Rs. of Prof. Conduct 1.5 (eff. Jan. 1, 2010)) each

list the amount customarily charged in the locality for similar

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services as a factor to be considered in setting a fee, more

recent cases interpreting the meaning of "reasonable compensa-

tion" under the Act omit this factor. See, e.g., Thorp, 282 Ill.

App. 3d at 619, 669 N.E.2d at 364 (listing the relevant factors).

Third, in Parlier, 40 Ill. App. 3d at 842, 354 N.E.2d at 35, this court stated,

"None of the lawyers here[ ] *** testified to [billing probate work by the hour] and no

case has been called to our attention that requires such a

method." In contrast, both attorney Brucker and petitioners'
expert Herr testified to billing some probate estates by the

hour. Herr never expressed an opinion regarding the propriety of

billing on a percentage basis other than to say it is customary

among some attorneys practicing in central and northern Illinois.

Moreover, intervenor cites at least one case suggesting a

reasonable fee cannot be determined without reference to an

hourly billing rate. See Bitoy, 395 Ill. App. 3d at 275, 917

N.E.2d at 84 (noting what tasks were done, by whom they were done,

and the time reasonably spent doing them "are necessary to the

probate court's determination of the reasonableness of the fee"

in a probate case). In light of these distinctions, the trial

court in this case did not err by disregarding the local bar

association's fee schedule purporting to support the

reasonableness of the requested attorney fees.

The second case petitioners cite in support of their

argument the trial court erred as a matter of law is In re Morgan

Washington Home, 108 Ill. App. 3d 245, 439 N.E.2d 34 (1982). In

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that case, the petitioning law firm represented a charity seeking

to take as a residuary beneficiary under a will. The trial court

awarded $92,200 in attorney fees pursuant to the contingent-fee

arrangement in the retainer agreement between the firm and the

charity. Id. at 245, 439 N.E.2d at 34-35. Under the agreement,

the firm was to receive 5% of the first $1 million recovered for

the charity and 2% of any further recovery. Id. at 246, 439

N.E.2d at 35. This court affirmed, employing the "Fiorito test."

Id. at 248, 439 N.E.2d at 36-37; see Fiorito v. Jones, 72 Ill.
2d 73, 377 N.E.2d 1019 (1978). Under that test, an appropriate

contingent fee is determined in two steps. First, the court must

"determine the number of hours properly spent by the attorneys

and the usual hourly rate for services of that caliber." Morgan

Washington Home, 108 Ill. App. 3d at 248, 439 N.E.2d at 36.

Second, "a further adjustment should be obtained by use of a

multiplier to reflect the contingent nature of the fees and the
results obtained." Id. The multiplier should, as a rule of

thumb, be less than three. Id. In Morgan Washington Home, 108

Ill. App. 3d at 248, 439 N.E.2d at 36-37, this court found the

evidence showed an attorney for the firm worked 762.8 hours at a

rate of $60 per hour; as such, a multiplier of about two would

produce the $92,200 fee awarded. Further, we noted, "The outcome

of the litigation was very uncertain, and the result was excel-

lent from the standpoint of petitioner." Id., 439 N.E.2d at 37.

Petitioners assert Morgan Washington Home supports

their 3% fee in this case. This case is readily distinguishable.

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 First, unlike attorney Brucker, the attorneys in Morgan Washing-

ton Home were not working for the estate's executor. Second, the

attorneys in Morgan Washington Home performed complex litigation

and attained a great reward for their client. In contrast,

Brucker's only litigation in this case was the unsuccessful

defense of a $2,000 claim against the estate characterized by the

trial court as uncomplicated. The court found Brucker's work for

the estate was not extraordinary or unusual. Third, and perhaps

most significantly, the fees in Morgan Washington Home were
contingent. The attorneys there would have recovered nothing if

they did not successfully prosecute a highly disputed claim. In

contrast, Brucker decided to charge his 3% fee because of the

size of the estate, the fact a federal estate-tax return would be

required, and numerous other attorneys follow a similar fee

schedule. In light of these distinctions, Morgan Washington Home

does not compel a different result in this case.
This court concluded almost three decades ago "[i]t is

now well established that fees may not be determined on the basis

of fee schedules." First National Bank of Decatur v. Barclay,

111 Ill. App. 3d 162, 163, 443 N.E.2d 780, 781 (1982). Clearly,

an award of fees in this case should have been based on the time

spent by petitioners, the complexity of the work they performed,

and their ability. We conclude that is what the trial court did.

III. CONCLUSION

We affirm the trial court's judgment.

Affirmed.

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