Who Pays Probate Attorney Fees?

Updated January 24, 2024
10 min read
Who Pays Probate Attorney Fees?

Coping with the loss of a loved one is challenging enough without the added worry of a probate case. An experienced probate attorney can answer questions about the probate court process, legal fees, costs, and what to expect. However, many people have a common question: "Who is responsible for paying probate attorney fees?" This article will delve into probate lawyer costs, typical payment scenarios, and how different situations can affect who pays the attorney fees during a will contest.

Probate Lawyer Costs and Payments

The cost of hiring a probate lawyer is essential when figuring out how probate attorneys get paid. In your initial meeting, ask how the attorney expects to be delivered. Transparent law firms will willingly discuss their legal fees, potential court costs, and whether they will charge an hourly or flat fee.

Your probate attorney's costs will largely depend on whether a probate proceeding is needed and, if so, what type is required. It is essential to acknowledge these factors ahead of time to manage your expectations and budget accordingly. Also, understanding these costs will aid in evaluating the cost-benefit of different probate attorneys, ensuring you hire the one offering the best value for their services.

The affidavit procedure

Some states offer an affidavit procedure for small estates where the total value is below a certain threshold set by state laws. This process eliminates the need for probate proceedings or inheritance lawyer fees. A representative, usually a spouse or partner, will file the death certificate and an affidavit stating that the decedent’s estate has a value less than the amount required by law. This procedure is simple and cost-effective, making transferring property from a small estate less burdensome for the surviving family.

Additionally, this strategy bypasses lengthy court procedures, allowing the family to focus on mourning and healing. Lastly, reducing legal complexities will enable relatives to sort out their loved one's affairs with minimum stress and confusion.

Settlement without court intervention

Sometimes, settling an estate can occur without court intervention, which may make the title seem misleading. Although the probate court is technically involved in this type of proceeding, it doesn't entail any actual litigation of issues. However, probate paperwork must be filed, and local rules must be followed.

Such settlements are applicable in various situations, like when the decedent’s estate is solvent, the decedent left a last will, or the person who petitions the court for settlement is not a creditor of the decedent. The court ascertains that it is in the best interest of these beneficiaries.

How Probate Lawyers Charge?

When you ask how much lawyer fees are for probate, you must know how your attorney calculates them. There are three possible ways for a probate attorney to charge:

  1. Some attorneys charge flat fees.

  2. Some attorneys charge an hourly rate.

  3. A few attorneys charge a percentage of the value of the estate.

Once understood, these fee structures can assist you in making an informed decision about hiring a probate attorney that best fits your financial circumstances and the complexity of the estate in question.

Flat fees

Many attorneys and clients prefer flat fees. For the client, having a written fee agreement is often chosen because the client will know in advance the total amount they will be charged, and there will be no surprises.

Flat fees can also be easier for attorneys because they don’t have to keep up with every bit of time they spend on the case, as they must do when charging on an hourly basis. However, attorneys are often reluctant to charge flat fees unless they are confident that they know what the case involves. If there is any litigation, the case could take much longer and cost more than expected. In those cases, a flat fee agreement is not usually a wise choice for the attorney. 

Hourly fees

Flat fees can be easier for attorneys as well because they don’t have to keep up with every bit of time they spend on the case as they must do when charging on an hourly basis. However, attorneys are often reluctant to charge flat fees unless they are confident that they know what the case involves. If any type of litigation or questions arise about who pays probate fees, the case could take much longer and cost much more than expected. In those cases, a flat fee agreement is not usually a wise choice for the attorney.

Percentage of estate value

Some attorneys prefer to charge a percentage of the estate’s value as their probate attorneys’ fees. However, not all states permit attorneys to demand a percentage of the probate assets. If the estate’s value is very high, attorney fees charged this way can be far more than most people would find reasonable; therefore, a percentage fee arrangement is not commonly used. 

Who Pays Attorney Fees in a Will Contest?

If someone contests the decedent's last will, that person will have to pay out of pocket to litigate. If the person challenging the will succeeds, the court may award attorney fees and costs incurred. However, there is no guarantee that the court will order reimbursement. Of course, if the person is unsuccessful in their challenge to the will, the attorneys’ fees and court costs paid will be considered a loss. 

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Who Pays Probate Attorney Fees?

The executor or estate representative will not be responsible for paying the probate attorneys’ fees and court costs. All costs owed to the attorney and the court are payable from the estate. In most states, attorneys’ fees are a priority expense and are paid before the distribution of the estate assets to the heirs and beneficiaries.

Rather than billing the estate representative during the probate process, most probate attorneys receive payment from the estate’s assets at the end of the probate process. In some states, the executor or estate representative may be paid a statutory fee from the estate for efforts and time spent. 

Conclusion

In conclusion, probate proceedings vary greatly, and the answer to most queries about probate attorney fees could be more straightforward. An estate's size and the complexities involved in probating the estate fundamentally determine the probate costs. In some cases, such as when the estate qualifies for an affidavit procedure, expenses can be minimal. In others with a will contest, the costs can escalate substantially. Thus, consulting with a seasoned probate attorney who can guide you through the process is recommended.

Article by
Yevheniia Savchenko
Lawrina

Yevheniia Savchenko is a Product Content Manager at Lawrina. Yevheniia creates user interface copies for Lawrina products, writes release notes, and helps customers get the best user experience from all Lawrina products. Also, Yevheniia is in charge of creating helpful content on legal template pages (Lawrina Templates) and up-to-date information on US law (Lawrina Guides). In her spare time, Yevheniia takes up swimming, travels, and goes for a walk in her home city.

If you have any questions or suggestions regarding the product or UX content for Lawrina, feel free to contact Yevheniia directly at y.savchenko@lawrina.org or connect with her on LinkedIn.