Probate is the court procedure in which a deceased person’s last will and testament is proven and given effect. This entails first verifying that the will is legal and then ensuring that the deceased person’s intentions are carried out. If the deceased person did not leave a will, the court must decide how to distribute the assets of the deceased’s estate. This is done according to state laws that specify to whom the assets of an estate should go if the deceased did not have a will. Not leaving a last will and testament is known as “intestacy”.
If there is a will, it usually identifies a person or an entity to serve as the executor or personal representative of the estate. In many cases, the services of an attorney are not even necessary. If the will is not contested by anyone and the estate is not large and does not involve real property, then the executor only needs only to perform certain tasks. They will usually have to locate the assets, have them appraised and sold if necessary, pay creditors, submit final tax returns and distribute the assets according to the directives of the will.
Attorneys may become involved in a probate case in a couple of ways. An attorney may be hired to assist the executor or personal representative to carry out the probate process. Or, an attorney may be hired by one of the beneficiaries of the will who is dissatisfied with the terms of the will to contest it. Lastly, an attorney may be hired by a person who was not named as a beneficiary but thinks they have a claim and contests the will.
What are Some Factors Used When Calculating Probate Attorney Fees?
The main factors that affect the fees charged by a probate attorney are the role the attorney is hired to play and the size of the estate.
If an estate is large enough in value and the executor does not feel competent to complete all of the activities that are required, the executor may hire an attorney for the probate process. In some states, the fee paid to an attorney for the estate is set by law.
For example, in the state of Maryland, state law prescribes a formula for attorney compensation; an attorney is paid 9 % of the first $20,000 of the gross estate, and 3.6 % of the amount over $20,000. So, the attorney’s fee for an estate valued at $1 million is $37,080. The fee is paid by the estate of the deceased, so it comes out of the amount that is distributed to the beneficiaries of the will.
In Maryland, however, attorneys may also charge an hourly fee, and this arrangement is sometimes better for many estates and personal representatives. An hourly fee may range from $250 to $350 per hour. Or, if the estate is not complicated in any way, e.g. all of the assets are known and have been left to a spouse or evenly divided among surviving children, the attorney may charge a flat fee for probate. A flat fee is a single, lump sum of money. A flat fee for probate might be around $3500.
If a person hires an attorney to contest a will, the attorney will most likely charge the person an hourly fee. So the attorney will keep careful track of the amount of time spent on the case and bill the person monthly for time spent. The sum total of all of the hours the attorney spends on the probate times the hourly fee is the final total of the amount paid to the attorney.
It is possible that an attorney would agree to represent a person in contesting a will on a contingency fee basis. This would mean that the attorney would take from 30 to 45% of the amount the attorney recovers for the client as the attorney’s fee. In a contingency fee situation, the attorney only gets paid if they recover money for the client. So, an attorney would only take a will contest case on a contingency fee basis, if they were very confident of winning an award of money for the client. It is more likely that an attorney would charge an hourly fee for representing a client in a will contest case.
If an attorney represents a client in contesting a will, the total fee will depend on how many hours the attorney spends on the case until it is concluded. If the case must go to trial, attorney’s fees could amount to thousands of dollars. A person who wants to contest a will must consider what it would cost and what can be gained before deciding whether to proceed.
Some states now allow small estates to pass to heirs without going through probate or they can pass through a simplified and expedited probate process. For example, in California, up to $100,000 can pass without probate. Or if a deceased person’s property is left to a surviving spouse, it can pass through a simplified probate procedure. Then an attorney would not be needed.
The rules about what qualifies as a small estate, defined by its dollar value, vary from state to state. A person’s assets may need to be worth less than $50,000 to be considered small for the purpose of using simplified transfer procedures. In other states, simplified probate may be available to estates worth as much as $150,000. The idea is that no attorneys are needed to process a small estate, so there would be no attorney’s fees to be paid.
What Services Do Probate Attorneys Perform?
An attorney can perform any of the services involved in probating an estate. These duties can include the following:
- Opening the estate in probate court;
- Creating an inventory of all of the assets of the deceased person, which can include a search for unknown assets, e.g. contacting banks within a certain area of where the deceased person lived to look for forgotten accounts;
- Filing the deceased person’s federal and state tax returns as well as an estate tax return, which would only be required for estates with a value of $11.4 million or above for federal estate tax purposes,
- Verifying and paying creditors,
- Possibly appraising assets and arranging for them to be sold;
- Locating and notifying beneficiaries; and
- Reporting actions taken to the court.
After all debts and taxes have been paid, including attorney’s fees, the personal representative can then distribute the assets to beneficiaries and close the estate.
What are the Advantages to Hiring a Probate Lawyer?
The advantage of hiring an experienced probate lawyer to handle the probate of an estate is that the lawyer knows how to proceed and can probably probate an estate most efficiently.
For example, if property, either personal or real property, needs to be appraised and sold, an experienced probate attorney probably knows qualified appraisers who can perform the appraisal and auctioneers or agents who can complete the sale. A person without experience would not know how to proceed and would not have contacts who can be quickly hired to complete tasks.
Do I Need to Hire a Probate Attorney?
If you have been named as an executor or personal representative for an estate and do not know where to begin, you may want to hire a probate attorney. An experienced probate attorney is familiar with probate procedures and should know exactly what to do.
Or, if you were not named as a beneficiary and believe you have a claim to a part of an estate, you will want to contact a probate attorney to discuss your rights and whether your claim is justified and worth pursuing.