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Who Pays Probate Attorney Fees?

Losing a loved one can be challenging without worrying about a probate case. An experienced probate lawyer can answer your questions concerning probate court, legal fees, costs, and what to expect during the entire process. However, the first question many people have is “who pays probate attorneys fees?” Read on for more information about probate lawyer fees, who typically pay probate legal fees, and who pays attorney fees in will contest cases.

What Does a Probate Lawyer Cost?

In your initial meeting with probate attorneys, you will want to ask how does a probate lawyer gets paid? This is an important question, and a good law firm will have no problem discussing their legal fees, potential court fees, and costs upfront, including whether they will charge an hourly fee or a flat fee. Probate attorneys’ fees largely depend on whether a person needs a probate proceeding and, if so, what type of proceeding is required.

Affidavit procedure

Some states offer an affidavit procedure for smaller estates where the estate’s total value is less than a specific amount set by that state’s laws. In an affidavit procedure, there is no actual probate proceeding. There are no inheritance lawyer fees. A representative, often a spouse or partner, of the decedent will file the death certificate with an affidavit that the decedent’s estate had a value of less than the amount required by law. The affidavit procedure is a straightforward and inexpensive procedure that makes transferring the property of a small estate much less burdensome to the surviving family. 

Settlement without court intervention

Even though it is often referred to as “settlement without court intervention,” the probate court is involved in this type of proceeding. The name given to this type of proceeding refers to the fact that there should not be any actual litigation of issues. However, there will still be necessary probate paperwork that must be filed and local rules that must be followed. The settlement without court intervention proceeding can be used in the following situations:

  • The decedent’s estate is solvent, with enough estate assets to pay all outstanding debts and any state or federal estate tax that may be due.
  • If the decedent left a Last Will and Testament, the person named as the executor in the Will files the original Will with the court and petitions the court for settlement without court intervention.
  • If the decedent did not have a Last Will and Testament but was married and had no children or grandchildren, the spouse may petition the court for a settlement without court intervention.
  • If the person who petitions the court for settlement without intervention is not a creditor of the decedent, and the court determines that it is in the best interest of the beneficiaries or heirs, this type of proceeding may be available. 

How Probate Lawyers Charge?

When you ask how much are lawyer fees for probate, you will need to know how your attorney calculates his or her fees. 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.
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Flat fees

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

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 there is any type of litigation, 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. 

Hourly fees

If an attorney charges hourly fees, he or she will keep track of all the time spent on a case and will bill the client for that time. If the probate process goes smoothly and quickly, the total amount charged by the attorney will be much less than if there is litigation involved. If there is a Will contest or any other type of litigation, hourly fees can add up quickly. 

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 charge 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. 

How to Get Reimbursed for Legal Expenses After Probate

If you have paid legal expenses for the decedent or for the estate, you can be reimbursed through the probate process. It is important to have detailed receipts and records of what expenses you paid, the reasons for those expenses, and the precise amount of the expenses. 

You will then need to file a claim in the probate court as a creditor of the estate and provide legal notices to the personal representative of the estate. As long as your claim is valid, you present proper evidence, and the estate is solvent, you should have no problem being reimbursed for the expenses you paid. 

Who Pays Attorneys Fees in a Will Contest?

If someone contests the Last Will and Testament of the decedent, that person will have to pay out of pocket to litigate. If the person contesting the Will is ultimately successful, the court may award attorneys fees and costs incurred in the case. However, there is no guarantee that the court will order reimbursement. Of course, if the person is not successful in his or her challenge to the Will, the attorneys’ fees and court costs paid will be considered a loss. 

Also read:What is a Probate Lawyer?

If you are interested in a career in law and people's assets and property, then you should consider a career as an estate attorney, ca...

Who Pays Probate Attorney Fees?

The executor of the estate, or the 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 out of the estate. In most states, attorneys’ fees are a priority expense and are paid prior to 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 spent efforts and time. 

Conclusions

Probate proceedings vary greatly, and there is no one straightforward answer to most questions about the cost of probate. Much depends on what probating the estate will involve. There can be very little expense in some cases, such as when an estate qualifies for an affidavit procedure. In other cases, probate costs can be extremely high, such as when there is a Will contest that dramatically increases the total cost of probate. Therefore, it may be wise to consult with an experienced probate attorney who can answer your questions and guide you through the probate process. 

Article by James Finsweet

James Finsweet is a Head of legal department in LawBrother Ltd. At Lawrina, James contributes his experience in law practice and shares opinions on law regulations and news.

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