What Is a Probate Fee Agreement?

Updated August 21, 2023
19 min read
What Is a Probate Fee Agreement?


Probate fee agreements are essential legal documents that outline the terms and conditions related to the compensation of attorneys and other professionals involved in probate litigation. This blog post will explore a probate fee agreement, why it is crucial, the different types available, and the components that comprise such an agreement. Additionally, we will guide you through creating a probate fee agreement, discuss its pros and cons, and address FAQs surrounding this topic.

Why Do You Need a Probate Fee Agreement?

Understanding the nuances and complexities of the probate process can often lead to confusion and frustration. A Probate Fee Agreement serves as an essential tool to help alleviate these issues.

Legal protection

Legal protection is a crucial benefit of having a probate fee agreement. A probate fee agreement offers the attorney and the client the necessary legal protection when engaging in probate litigation. 

Legal security

A probate fee agreement safeguards the rights of the attorney and the client involved in probate litigation. It establishes a legal framework that clarifies the compensation terms and minimizes the potential for misunderstandings or disputes to arise.

For example, in U.S. law, probate fee agreements are governed by state statutes and regulations that provide guidelines for creating and enforcing these agreements.

Transparency in fees

Probate fee agreements are crucial in promoting transparency in the billing process. These agreements clearly show the fees associated with the legal services rendered in probate litigation. 

For example, the Uniform Probate Code provides a framework for probate fee agreements in U.S. law. This code includes provisions emphasizing the importance of transparency in fee arrangements and requiring attorneys to fully disclose the nature and breakdown of fees to their clients. 

Specification of roles and responsibilities

A probate fee agreement plays a vital role in clarifying the attorney's and client's roles and responsibilities. The agreement clearly outlines the specific services that the attorney will perform in the probate litigation fee agreement process and any corresponding obligations the client has. This clarity in defining responsibilities helps prevent misunderstandings and fosters a productive attorney-client relationship. 

  • Role clarificationA probate fee agreement defines the roles and responsibilities of the attorney and the client involved in the probate litigation.

  • Specific service delineation: The probate fee agreement outlines the attorney's services during the probate litigation process.

  • Expectation setting: By establishing clear roles and responsibilities, the probate fee agreement helps avoid misunderstandings and promotes a productive attorney-client relationship.

For instance, the American Bar Association (ABA) provides guidelines and model rules for attorneys engaging in probate litigation in the United States. These rules emphasize the importance of clearly defining the roles and responsibilities of attorneys and clients through probate fee agreements.

Types of Probate Fee Agreements

There are three primary types of probate fee agreements: hourly fee agreements, flat fee agreements, and percentage fee agreements. If you’re not about the agreement details, use the wide range of the legal services on Lawrina. Let's delve into each type.

Hourly fee agreement

Probate fee agreements come in different types, and one standard option is an hourly fee agreement. In this type of probate fee agreement, the attorney's compensation is determined based on the number of hours they dedicate to the probate litigation. 

  • Hourly fee agreementprobate fee agreement where the attorney's compensation is based on the number of hours devoted to the probate litigation fee agreement.

  • Hourly rate specification: The agreement clearly outlines the hourly rate the attorney will charge for their services.

  • Suitability for uncertain or variable cases: Hourly fee agreements are commonly chosen when the extent of work or the duration of the probate litigation is uncertain or likely to fluctuate.

For example, in the U.S., many states have specific rules regarding probate fee agreements. In California, for instance, the Rules of Professional Conduct set standards for attorneys regarding fee agreements, including those used in probate litigation.

Flat fee agreement

Flat fee agreements are another type of probate fee agreement where the attorney and client agree upon a predetermined fixed sum for the entire probate litigation process, regardless of the hours worked. This approach simplifies the billing process and gives clients a transparent understanding of the total cost from the outset. 

  • Flat fee agreement: A probate fee agreement where a fixed sum is agreed upon for the entirety of the probate litigation fee agreement process, regardless of the actual hours expended.

  • Predefined total cost: The agreement establishes the total cost upfront, giving clients clarity and certainty about the overall expenses.

  • Suitability for cases with predictable complexity/duration: Flat fee agreements are commonly used when the case's intricacy and anticipated time frame can be reliably estimated.

For example, specific state statutes and regulations in the United States govern probate fee agreements. The Surrogate's Court Procedure Act guides fee arrangements in probate proceedings in New York. 

Percentage fee agreement

Percentage fee agreements are a type of probate fee agreement where the attorney's compensation is contingent upon the outcome of the probate litigation. In this arrangement, the fee is calculated as a percentage of the value of the estate being administered. 

  • Percentage fee agreement: A probate fee agreement where the attorney's compensation is determined as a percentage of the estate's value in the probate litigation.

  • Calculation based on estate value: The probate fee agreement specifies that the fee will be calculated as a percentage of the estate's total value.

  • Alignment of interests: Probate fee agreements align the interests of the attorney and the client, as the attorney's remuneration is directly tied to the favorable outcome of the case.

For example, in U.S. law, the American Bar Association's Model Rules of Professional Conduct provide guidance on the use of probate fee agreements in probate litigation.

Components of a Probate Fee Agreement

To ensure a comprehensive probate fee agreement, several critical components must be included:

Services to be performed

In a probate fee agreement, it is crucial to clearly outline the services that the attorney will provide throughout the probate litigation process. The contract should encompass various tasks and responsibilities that the attorney will undertake on behalf of the client. These may include:

  1. Estate inventory: The attorney will assist in compiling a comprehensive list of the assets and liabilities of the estate.

  2. Legal document filing: The attorney will prepare and file all necessary legal documents required for the probate fee agreement.

  3. Court representation: The attorney will represent the client in court proceedings related to the probate litigation, advocating for their best interests.

  4. Communication with relevant parties: The attorney will engage in communication and correspondence with other parties involved, such as beneficiaries, executors, and creditors, to ensure a smooth probate process.

For example, in the United States, the Uniform Probate Code (UPC) provides guidelines and rules regarding the parties' responsibilities in the probate fee agreement.

Fee and its calculation

The fee section of a probate fee agreement serves as a vital component, clearly specifying the cost associated with the legal services provided. Depending on the agreed-upon arrangement, the fee section may include:

  1. Hourly rate: If an hourly fee agreement is in place, the fee section will outline the attorney's hourly rate for the probate litigation services, which are listed in the probate fee agreement.

  2. Flat fee: In the case of a flat fee agreement, the section will state the fixed amount that the client is obligated to pay for the entire probate litigation process listed in the probate fee agreement.

  3. Percentage fee: If a percentage fee agreement is used, the fee section will indicate the percentage of the estate's value allocated as the attorney's fee.

For example, various state statutes and regulations govern probate fee agreements in U.S. law. In Texas, the Estates Code provides guidelines on fee agreements in probate proceedings.

Responsibilities of both parties

The obligations and responsibilities of the attorney and the client are crucial elements outlined in a probate fee agreement. This section ensures a clear understanding of the expectations and promotes a cooperative and productive working relationship. It may include:

  1. Client's provision of documents: The agreement stipulates that the client is responsible for providing all necessary documents and information relevant to the probate litigation fee agreement process.

  2. Prompt payment of fees: The client agrees to timely pay the fees as outlined in the fee section of the probate litigation fee agreement.

  3. Attorney's commitment to diligence: The attorney commits to working diligently and using their best efforts in representing the client's interests throughout the probate litigation.

For instance, in the United States, state laws govern the attorney-client relationship and impose certain obligations on both parties. In California, the Business and Professions Code and rules of professional conduct address the responsibilities of attorneys and clients in fee agreements.

How to Create a Probate Fee Agreement?

Creating a probate fee agreement involves several essential steps. By following these guidelines, you can ensure that the agreement accurately reflects the terms and conditions of the attorney-client relationship:

  • Assess the needs of your specific probate case and determine the appropriate type of fee agreement.

  • Familiarize yourself with the relevant laws and regulations about probate litigation fee agreement in your jurisdiction to guarantee compliance.

  • Consult a qualified attorney specializing in business law to ensure the probate fee agreement meets all legal requirements and adequately protects your rights and interests. Lawyers that specialize in business law can offer valuable expertise in this area.

  • Utilize a fee agreement template from a reliable resource, such as a probate fee agreement, to streamline the agreement creation process. You can also explore other templates related to business that may be relevant to your specific needs.

  • Tailor the probate fee agreement template to your unique circumstances by modifying the language, terms, and clauses as required.

  • Communicate the terms and obtain consent from all parties to ensure mutual understanding and probate fee agreement.

  • Retain a signed copy of the probate fee agreement for legal documentation purposes.

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A probate fee agreement is an essential legal document that ensures clarity, transparency, and legal protection in the compensation of attorneys involved in probate litigation.

By specifying the services to be performed, fees to be charged, and the responsibilities of both parties, these agreements facilitate smoother attorney-client relationships and minimize potential conflicts. Remember to adhere to the relevant laws and consult professionals experienced in business law throughout the creation and negotiation. With a well-drafted probate fee agreement, you can navigate the probate process confidently and efficiently.

Article by
Inna Chumachenko

Inna Chumachenko is the Content Lead at Lawrina. She is responsible for managing all the content found on the blog, guides, and other website pages. Inna has a degree in philology and a vast interest in law. In her role at Lawrina, Inna oversees the content team, establishes collaborations with writers, and curates content from various contributors.

If you have any questions or suggestions regarding the content for Lawrina, please feel free to contact Inna directly via email at i.chumachenko@lawrina.org or connect with her on LinkedIn.

Frequently Asked Questions

What is the purpose of a probate fee agreement?

The primary purpose of a probate fee agreement is to establish clear and mutually agreed-upon terms and conditions regarding the compensation of attorneys and professionals engaged in probate litigation. This agreement serves as a legally binding document that protects both parties involved. It promotes transparency by explicitly outlining the fees, charges, and billing practices, ensuring no surprises or ambiguities regarding compensation. 


For example, under the United States Code, Title 28, Section 2071, attorneys must file a written retainer or probate litigation fee agreement with the court. This emphasizes the importance of having clear terms and conditions related to compensation and highlights the legal significance of a probate fee agreement in the United States. By complying with these regulations, attorneys protect their interests and ensure transparency in their billing practices for probate litigation services.


How is a probate fee agreement structured?

A typical probate fee agreement encompasses various essential components to ensure clarity and mutual understanding between the attorney and the client. These components include:

  1. Services to be performed.
  2. Fee structure.
  3. Responsibilities of both parties.


For instance, in California, the California Rules of Professional Conduct dictate that attorneys must include specific provisions in their fee agreements, including information about the scope of representation, the basis or rate of the fee, the expenses to be charged, and the payment method. These rules demonstrate the importance of accurately and comprehensively addressing the components of a probate litigation fee agreement to comply with legal requirements and protect the interests of both parties involved.


What should I consider when creating a probate fee agreement?

When creating a probate fee agreement, it is crucial to consider your case's unique needs and circumstances. Consider factors such as the probate litigation's complexity, the process's anticipated duration, and the estate's value. Depending on these factors, you may opt for an hourly fee agreement, a flat fee agreement, or a percentage fee agreement. It is essential to consult with an experienced attorney specializing in probate or business law to help you navigate the legal requirements and ensure that the probate fee agreement aligns with the applicable regulations in your jurisdiction.

For example, in New York, the New York Rules of Professional Conduct set forth guidelines that attorneys must adhere to when crafting fee agreements, including those related to probate litigation. These rules ensure that the deal is fair and reasonable and that the client is informed about the fee structure, payment terms, and other important considerations. Consulting with an attorney familiar with the specific rules in your jurisdiction will help ensure that your probate litigation fee agreement complies with the applicable legal requirements.


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