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New Case Alert: Novak v. Fay

Filed April 28, 2015, Second District, Division Five

Cite as B256889

An attorney representing a client on a contingency basis brought a petition to determine the client was a pretermitted spouse. A settlement was reached and approved by the probate court under which a trust established by the deceased spouse was to make various payments. The client then died. The attorney filed a petition to enforce his claim for fees against the trust. The trial court denied the attorney’s petition, finding that the proper procedure to recover attorney’s fees was by a creditor’s claim against the client’s estate and that such a claim and the attorney’s petition were both time barred. The appellate court reversed and remanded with instructions, noting that the attorney’s beneficial interest and the lien attached to it came into being at the time of the settlement and its approval by the probate court. Under Probate Code § 9391, the holder of a lien against property in the decedent’s estate may commence an action to enforce the lien without first filing a claim if in the complaint the holder expressly waives recourse against all other property in the estate.

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