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STATE OF MICHIGAN 

COURT OF APPEALS 

In re Estate of MARIAN I. CARY. 

PHILIP A. CARY, Personal Representative of the 

Estate of MARIAN I. CARY, 

 Appellee, 

UNPUBLISHED 

June 1, 2017 

v No. 331287 

Branch Probate Court 

DEPARTMENT OF HEALTH AND HUMAN 

SERVICES, 

LC No. 14-033893-DE 

 Appellant. 

Before: O’BRIEN, P.J., and SERVITTO and STEPHENS, JJ. 

O’BRIEN, P.J. (dissenting). 

 I respectfully dissent. 

 Marian I. Cary passed away on April 1, 2014, leaving behind only two assets worth 

$92,451.73: real property valued at $92,000.00 and $451.73 in cash. Between her death and the 

order appealed, which was entered on January 6, 2016, three attorneys charged Cary’s estate 

$46,390.40 in attorney fees, according to the first annual and final accountings filed before the 

trial court.1

 The issue presented before the trial court and again on appeal is whether this amount 

was reasonable under the facts and circumstances of this case. On the record before me, I cannot 

conclude whether it is or is not. In concluding that this amount was reasonable, the trial court 

explained, in full, as follows: 

What the Court’s going to do in this particular case is I am going to approve the 

attorney fees that have been submitted on the first . . . annual accounting. I will 

also approve what has been submitted on the final accounting and those will be 

attorney fees in this case. Nothing since then, so that means everything that 

 

1

 To be clear, this amount reflects only the requested attorney fees. It does not reflect any other 

expenses sought by the attorneys or their firms. 
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you’ve done today or from the date of that filing up until this day will not be 

reimbursed for, but I will approve those amounts and that will be the amounts that 

the Court will approve and nothing else. 

 In my view, this is simply insufficient. See Smith v Khouri, 481 Mich 519, 530-534; 751 

NW2d 472 (2008).2 The decedent received, and appellant sought reimbursement for, 

$113,196.71 in Medicaid benefits prior to her death. The estate, represented by three attorneys, 

unsuccessfully defended against appellant’s claim in a zealous fashion. According to the 

invoices provided by each law firm, these three attorneys spent 169.6 hours on this case during 

that time period. Despite this amount of work, the parties ended up stipulating to allow 

appellant’s claim. Nevertheless, the estate’s attorneys sought compensation for their zealous, 

albeit unsuccessful, efforts. Their charged fees, coupled with various other costs such as funeral 

expenses, costs related to the sale of the real property, and other fees, reduced the value of the 

estate from its original value of $92,451.73 to $14,895.42.3 While attorney fees in an amount 

that is equal to 50 (50.177969 to be precise) percent of the entire estate might be reasonable in 

some cases, I believe that a more thorough analysis is required in this matter.4

 Therefore, I 

would remand to provide the trial court with an opportunity to do exactly that. 

 

2

 In Smith, 481 Mich at 530-531, our Supreme Court explained the proper procedure for 

evaluating the reasonableness of claimed attorney fees as follows: 

We conclude that our current multifactor approach needs some fine-tuning. We 

hold that a trial court should begin its analysis by determining the fee customarily 

charged in the locality for similar legal services, i.e., factor 3 under MRPC 1.5(a). 

In determining this number, the court should use reliable surveys or other credible 

evidence of the legal market. This number should be multiplied by the reasonable 

number of hours expected in the case (factor 1 under MRPC 1.5[a] and factor 2 

under Wood). The number produced by this calculation should serve as the

starting point for calculating a reasonable attorney fee. We believe that having 

the trial court consider these two factors will lead to greater consistency in 

awards. Thereafter, the court should consider the remaining Wood/MRPC factors 

to determine whether an up or down adjustment is appropriate. And, in order to 

aid appellate review, a trial court should briefly discuss its view of the remaining 

factors. 

While it is possible that the trial court may have followed this procedure off the record, the 

record does not reflect that such a procedure was followed, and, at least in my view, such a lack 

of record precludes adequate appellate review. 

3

 Additionally, that remaining amount, $14,895.42, remains subject to various statutory 

exemptions. See, e.g., MCL 700.2404. 

4

 My review of the record leaves me with serious questions as to the reasonableness of various 

charges against the estate under the facts and circumstances in this case. For example, I question 

whether it is reasonable for attorneys in a case such as this, i.e., a case where the estate is valued 
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 Similarly, despite the majority’s conclusion to the contrary, I would also conclude that, 

on remand, the trial court should additionally address the reasonableness of the personal 

representative’s claimed fee, which was a flat-rate $5,000.00 fee. The majority disregards 

appellant’s arguments in this regard due to appellant’s failure to “properly raise an objection.” 

My review of the record, however, reflects that these arguments were adequately preserved to 

facilitate appellate review.5 Therefore, I am of the view that the trial court should be provided an 

opportunity to review those as well. 

/s/ Colleen A. O'Brien 

at less than $100,000.00 and subject to claims in excess of that amount, for attorneys to charge a 

client $225.00 per hour to request meeting minutes from the Senate Appropriations Committee. 

While this is only one example, there are various other charges to the estate that leave me with 

concerns regarding the reasonableness of the strategy taken by the estate’s attorneys. As another 

example, I also question whether it was reasonable for the estate’s attorneys to contact various 

probate courts to obtain lower-court files regarding cases that were appealed until more 

information was available before this Court. While it is possible that these extraordinary efforts 

were requested by the personal representative, it is these concerns, coupled with appellant’s 

assertions that the estate’s attorneys were using this case to improve their overall knowledge of 

estate recovery rather than to actually benefit the estate, that leave me with serious questions as 

to whether the fees, as requested, were reasonable. I believe that these questions could be 

adequately answered by the trial court on remand. 

5

 Specifically, appellant expressly contested the reasonableness of the fees claimed by the 

personal representative. For example, it specifically argued that “the attorney fees and the 

Personal Representative cannot justify a large percentage of the fees charged.” (Emphasis 

added.) While this argument could well have been further developed by appellant, I nevertheless 

believe it was sufficient for preservation purposes. I would note, however, that the fee sought by 

the personal representative seems, at least at first blush, to be significantly more reasonable than 

the fees sought by the attorneys in this matter.