(dissenting) — The issue in this case is the overall reasonableness of the attorney fee requested to probate the Larson estate, not merely whether the Manzas have proven that every hour spent was necessary. The evidence in this case shows that the attorneys for the estate (Manzas) have met the burden of proving that the fee charged for the probate was reasonable. The evidence presented by the objectors is not sufficient to prove otherwise. I therefore dissent and would hold that the $23,145 fee requested and approved by the trial court is amply supported by the record as a reasonable award.
I agree with the majority that no attorney fees should be awarded for merely proving the reasonableness of attorney fees. I would therefore remand for a determination of the number of hours spent by the Manzas preparing to meet the two objections that were unrelated to attorney fees. I would then award attorney fees for time spent on those objections only. I would not award any other fees to either party in this case on appeal.
The $23,145 Fee for Probate of the Larson Estate
Applying either the case law factors set out in In re Estate of Peterson, 12 Wn.2d 686, 123 P.2d 733 (1942) or CPR DR 2-106(B) as the standard, the Manzas have provided sufficient evidence to justify the fee requested under the relevant criteria.
One criterion is the novelty or complexity of the questions involved. The majority characterizes this estate as one presenting "no novel or difficult legal or administrative problems", and states that the heirship determination was accomplished with "only minor difficulties". Majority, at 522-23. I do not agree.
In fact, an expert for the objectors, Mr. John R. Stair, an experienced practitioner from Seattle, testified that the heirship question was "terribly complicated" and that the work done by the Manzas in relation to that question was justifiable. Furthermore, Mr. Stair stated that in his opin*536ion the tax treaty question was so complex as to require a tax expert. Yet, Patrick Manza prepared the tax returns himself; nobody has criticized his performance of that task. Thus, at least two novel or difficult areas were identified by the objectors' expert that would justify an increased number of hours and an increased fee.
Additionally, the majority's assertion that the estate has been required to pay for the "education" of Patrick Manza is unsubstantiated by the record. One expert for the estate, Mr. Elvin Vandeberg, an experienced practitioner from Tacoma, decreased the amount of the fee by 25 percent to compensate for inexperience on the part of Patrick Manza. Mr. Vandeberg's opinion of a reasonable fee for probating this particular estate was $25,115.50. This estimate was almost $2,000 more than the amount requested by the Manzas and was arrived at after he deducted $5,240 to allow for any extra hours spent by Patrick Manza.
The majority charges that neither Elvin Vandeberg nor Marshall Adams, the estate's other expert, addressed the necessity of the hours spent by the Manzas, but rather that these experts assumed that 364.5 hours were necessary to close the estate. Both experts, in fact, reviewed the probate files in this case and both interviewed the Manzas regarding this case. Marshall Adams, also an experienced practitioner from Tacoma, then specifically testified that he had considered the time records and amount of time involved in the case. In his opinion, $35,000 would be a reasonable fee in this case.
Moreover, while Mr. Adams and Mr. Vandeberg did not specifically state that every hour spent was necessary, implicit in their opinions is the fact that the hours spent were necessary. Clearly, the overall fee could not be considered reasonable by these experts if numerous unnecessary hours were spent.
Significantly, Mr. Adams testified that in some probate cases, the fee properly may be based on factors other than hours required or spent. These factors include the time and degree of novelty involved and the results obtained, as well *537as the general "pain and suffering" experienced by the attorney in dealing with a particular estate. Based on all of these factors, a reasonable fee is set by the attorney. In Marshall Adams' opinion, the Larson estate warrants a $35,000 attorney fee, based on all of the relevant factors, rather than on any one factor.
Marshall Adams properly considered, in stating that $35,000 would be a reasonable fee, that the estate was saved approximately $20,000 in commissions on the sale of the timberland through use of a forestry service company rather than a real estate broker. Mr. Adams indicated that he considered this as merely one factor in setting the reasonable fee.
While it is true that Mr. Swanson, the administrator, originally suggested the use of a forestry service company to the Manzas, the Manzas did all of the work in selling the land. The very favorable result reached in that sale was due in considerable part to the efforts of the Manzas as brokers for the sale. Mr. Swanson merely gave the Manzas the name of a forestry company; the Manzas contacted the company, negotiated the terms for the appraisal and sale, prepared 104 prospectuses, took bids and conducted the sale. The Manzas exercised excellent professional judgment in pursuing the suggestion of the administrator. Certainly, that course involved considerably more work by the Manzas than use of a real estate broker. Regardless of who originally suggested the use of the forestry company, the expert properly considered the extra work and favorable result obtained as relevant factors in setting an overall reasonable attorney fee.
The majority accords great weight to the testimony of the objectors' expert, Mr. Stair, as to the number of hours necessary to probate the Larson estate. I disagree that Mr. Stair's testimony is entitled to that degree of weight.
Mr. Stair stated that he does not now, and never has, employed legal assistants in probate work. Yet, in his opinion, 48 hours of the work on the Larson estate could have been done by such assistants. The Manzas likewise testified *538that they do not employ legal assistants in probate work. Mr. Stair did not explain why he does not find it proper or necessary to employ legal assistants in his own probate practice, yet finds it unreasonable that the Manzas do not use these assistants. Presumably, Mr. Stair would necessarily characterize his own fees as unreasonable in every probate case. Furthermore, the term "legal assistant" was not defined by Mr. Stair, so this court has no way to decide whether his opinion regarding the use of such assistants is valid. The majority further holds that the Manzas breached their fiduciary duty to maximize the rate of return on estate assets. A careful review of the record proves that the Manzas acted to protect the estate and its heirs and had a reasonable basis for investing the sale proceeds in savings accounts at various Tacoma banks.
The Manzas were aware that the estate taxes would be substantial and that these taxes would have to be paid within 9 months of Larson's death to avoid interest and penalties. In fact, the Washington inheritance tax was $95,113.64; the federal tax was $79,122.87. The combined taxes amounted to approximately one-third of the value of the estate. Interest and penalties on that amount would not have been insignificant.
Accordingly, to avoid the interest and penalties, the Manzas needed to have the funds readily available to pay these taxes when due. They purposely avoided placing the funds in long-term investments that would result in large withdrawal penalties.
Furthermore, the Manzas operated under a court order to place the money in insured savings accounts pending determination and payment of the taxes, and subject to withdrawal only by court order. The court order required the money to be placed in savings accounts in sums of $38,000 each, so as to stay below the $40,000 maximum insurance level. That order was dated August 3, 1979.
The taxes were paid approximately 2 months later. Meanwhile, the Manzas had been working to obtain the heirship certificate for all of the Swedish heirs; they *539expected to receive this certificate at any time. Thus, they did not act to place the remaining funds into higher interest, long-term investments immediately upon payment of the taxes. Rather, they desired to keep the money available for immediate distribution upon receipt of the heirship certificate. This desire was well justified. Many of the Swedish heirs were elderly; one had already died awaiting distribution and another had been placed in an institution.
However, the Manzas were then informed by the attorney for these Swedish heirs that the certificate of heirship would take longer to obtain than previously expected. That attorney suggested that long-term investments might now be appropriate. In November 1979, the Manzas moved to place the funds in higher-yield investments, knowing that final distribution had been indefinitely delayed.
The only testimony critical of the investments made by the Manzas was that of Mr. Stair. He testified that, in his opinion, the Manzas should have used "some Government medium” of investment "whereby you can withdraw necessary . . . funds and not suffer an interest penalty". Mr. Stair did not testify that he knew of any government medium in which funds could be placed for only 2 months and withdrawn without a penalty; he did not state what particular mediums were available in 1979 that would have met the specific needs of the Larson estate. Thus, his testimony does not overcome the testimony by the Manzas regarding the need to invest as they did.
Furthermore, the Manzas did state that they had made inquiries as to the best manner of investing the proceeds before proceeding as they did. Therefore, the preponderance of evidence shows that the Manzas studied the options and, based on the particular needs of the Larson estate, chose to invest in savings accounts until the taxes had been paid. In the absence of testimony that alternative investment options existed that would have both met the needs of the estate and offered higher interest rates, this record does not show the Manzas breached their fiduciary duties.
The majority also asserts that the number of hours spent *540investing these funds was unreasonable. Mr. Stair testified that the investments could have been accomplished in 3 hours, rather than 47 hours.
Conversely, Mr. Adams and Mr. Vandeberg testified that the entire attorney fee requested by the Manzas was reasonable. These two experts were aware of the time spent making the various investments and that time was considered by them in stating their opinions as to the overall reasonableness of the fee.
Additionally, the approximately 47 hours cited by the majority as time spent by the Manzas investing the funds includes many tasks which are unrelated to investing the funds:
An undetermined number of hours was spent on unrelated tasks. Thus, the majority's contention that nearly 47 hours were spent depositing and redepositing funds is unfair to the attorneys in this case.
Finally, the majority objects to the number of hours *541spent by the attorneys in preparation of the tax returns. Federal estate and federal income tax returns, as well as a Washington inheritance tax return, were prepared by Patrick Manza.
The majority relies heavily on the testimony of Mr. Adams. This reliance is misplaced as to the tax return question. Mr. Adams testified that he considered the total amount of time spent in the preparation of the tax returns in forming his opinion that $35,000 would be a reasonable attorney fee in this case. On cross examination by the objectors, his testimony becomes confused as to which returns are being discussed. His opinion that at least 16 hours would be required for tax return preparation appears to relate to only one set of the tax returns. Mr. Adams gave no opinion as to the total number of hours necessary to prepare all three sets of tax returns. Thus, his testimony has little value as to that specific question.
Again, the approximately 50 hours attributed to tax preparation by the majority also includes numerous other activities related to different aspects of the estate: telephone calls to client, calls to Jack Winn regarding appraisal, calls to banks regarding investment of funds, conferences regarding heir determination, calls to insurance company, letters written, review of file, work on proof of heirship. Clearly, the evidence presented by the Manzas that their overall fee is reasonable is not controverted by this evidence.
In sum, I cannot agree that this record shows that "an inordinate amount of time was spent on investing estate moneys and preparing returns for an estate that presented no difficult or complex . . . problems." Majority, at 531. Actually, the Manzas presented evidence that the fee requested was reasonable under the particular circumstances of the Larson estate. The record also shows that the estate presented both novel and complex heirship and tax treatment questions. The fee award of $23,145 should be upheld.
*542Fees Incurred in Defending Objections to Final Report
I fully agree that no fee should be awarded for merely defending the original attorney fee charged in a probate case. However, in this case considerable time was spent by the Manzas in preparing to defend against two objections unrelated to attorney fees which were abandoned just prior to the hearings. These hours should be compensated out of the estate funds.
Thus, I would remand for a determination of hours spent preparing to defend against the first two objections as opposed to hours spent preparing to defend attorney fees only. The commissioner's allowance of $10,000 should be adjusted accordingly. I would allow no other fees to either party in this case.
Utter, Dolliver, and Dimmick, JJ., concur with Pearson, J.