Probate Lawyers' Fees and Billing

Dealing with lawyers might be the last thing people want to think about when a loved one dies. Unfortunately, hiring a probate lawyer is often necessary to ensure the correct people inherit a deceased person's property without long delays.

How much will it cost to hire a probate lawyer? The answer varies greatly, but it will depend on where you file the probate case and how complicated the legal work is.

What Is Probate and What's the Role of a Probate Attorney?

Before you decide whether to hire a probate lawyer, you should understand what probate is and what a probate lawyer does.

Probate

Probate is a legal process that's used to distribute a deceased person's property to beneficiaries, heirs, and creditors. Unless the estate qualifies for certain probate shortcuts, the probate court will appoint an executor. The executor might have a different name in your probate court—such as "personal representative" or "administrator." If there's a will, probate also includes proving the will is valid. If not, then probate will include identifying heirs to inherit under your state's intestate succession laws.

Probate Lawyer

If you're the executor of an estate, you can hire a lawyer to handle the whole probate case or just help you do it. (See "Working With a Probate Lawyer.") Probate involves paperwork and court appearances, and it might be easier to have a lawyer handle those tasks for you.

Either way, keep in mind that as executor you don't pay the probate lawyer's fee from your own pocket. You can use estate assets to pay the bill before the inheritors get anything.

Types of Fee Structures

Lawyers usually use one of three methods to charge for probate work: an hourly fee, a flat fee, or a fee based on the percentage of the value of the estate. Your lawyer might let you pick how you pay—for example, $250 per hour or a $1,500 flat fee for handling a routine probate case.

Hourly Billing

Many probate lawyers bill clients by the hour. The hourly rate will depend on how much experience and training the lawyer has, where you live, and whether the lawyer practices in a big law firm or a small one. (See "Factors Affecting Probate Lawyers' Fees" below.)

Many lawyers bill in minimum increments of six minutes (one-tenth of an hour). So, if your lawyer (or a legal assistant) spends two minutes on a phone call on behalf of the estate, you'll be billed for six minutes.

A lawyer who charges an hourly rate likely will ask for a retainer. A retainer is an up-front payment from the client to the lawyer. The lawyer puts the retainer in a special account for client funds. The lawyer deducts funds from the account to cover the hourly fees while working on the client's legal matter.

When the retainer funds get low, many lawyers require that the client add money to the retainer account before continuing work on the case. When the probate case is finished, the lawyer will return the unused funds to the clients.

Flat Fees

It's also common for lawyers to charge their probate clients a flat fee. That way, they don't have to keep down-to-the-minute records of how they spend their time. (Lawyers don't like keeping track of their "billable hours" any more than clients like paying for all those six-minute intervals.) And because they have a good idea of how long an average probate will take, they can charge a fee that will be close to what they would get if they billed by the hour.

If you're billed this way, you don't have to worry about running up the bill every time you want to ask a question of the lawyer. It can be a more relaxed experience. If you agree to pay a flat fee for legal work, make sure you understand what it does and doesn't cover. For example, you might still have to pay separate court filing costs, fees to record documents, or appraiser's fees. (See "Additional Probate Costs" below.)

Percentage of the Estate's Value

The worst way to pay a probate lawyer—from the estate's point of view—is to pay a percentage of the value of the estate as the fee. This is customary in only a few states. And even in those states, lawyers aren't required by law to collect a percentage fee. You can and should try to negotiate an hourly rate or flat fee with the lawyer. But many lawyers prefer the "statutory fee" because it's usually very high in relation to the amount of work they have to do.

State law allows lawyers to charge a set percentage fee in:

These fees are often high under the circumstances because they're calculated based on the gross value of the probate assets, not the net value. For example, if you're handling an estate that includes a house worth $300,000, with $175,000 left on the mortgage, the lawyer's fee would be based on $300,000—not the $125,000 of equity the estate actually owns. And the probate paperwork for transferring a $1 million house is basically the same as it is for transferring a $150,000 house—so why should the fee be so different?

You can get an idea of how high these fees are by looking at California's statutory fee schedule. For "ordinary" services, a lawyer can collect:

• 4% of the first 100,000 of the gross value of the probate estate
• 3% of the next $100,000
• 2% of the next $800,000
• 1% of the next $9 million
• ½% of the next 15 million
• "a reasonable amount" of anything over $25 million

(Cal. Prob. Code § 10810 (2025).)

Using this system, probating a typical California estate with a gross value of $500,000 would cost $13,000 in legal fees—a very large amount given the amount of legal work involved. The estate would do much better if it paid the lawyer by the hour.

Other Factors Affecting Probate Lawyers' Fees

Several different factors can affect how much you'll have to pay for a probate lawyer. Obviously, if your lawyer uses an hourly rate, your bill will increase with each minute spent on the probate case. Other factors—like the attorney's experience, the local market rate, and the estate's complexity and size—also will affect the fee you'll pay.

The Attorney's Experience

A lawyer who does nothing but estate planning and probate will likely charge a higher hourly rate than a general practitioner. The advantage to you is that a specialist should be more efficient. Someone who has steered many probates through the local court has probably learned all the local rules and how to prepare and file documents the way the court likes them.

If your main attorney employs less experienced lawyers (associates) and legal assistants (paralegals), their time should be billed at a lower hourly rate. In firms that do probate work, it's common for legal assistants to draw up the routine paperwork.

The Size of the City and Law Firm

The cost of living tends to be more expensive in big cities than in small towns. Attorneys' fees usually follow the same trend as the cost of living. Small-town rates might be as low as $150 to $200 per hour. But, in a larger city, a rate of less than $250 per hour would be unusual.

The size of the law firm also can affect how much attorneys charge for probate. Big firms generally charge higher rates than sole practitioners or small firms, unless a small firm is made up solely of hot-shot specialists. But big firms sometimes use less experienced attorneys and legal assistants—who bill at lower hourly rates—to handle easier tasks, so you might end up not spending a lot more at a big firm.

The Estate's Complexity and Size

The size (total value) of the estate and its complexity will affect the total lawyers' fee. Large estates tend to pay the most in legal fees because they tend to have complex issues—like tax matters—that require more time from attorneys. For attorneys who charge hourly rates, more time means higher legal bills. Even attorneys who charge flat fees will look at the size and complexity of the estate when deciding what to charge.

Besides the estate's size, the following factors can determine how complex an estate is (and how much the attorney will charge):

• whether or not there's a will
• there's a will that's missing or potentially invalid
• the number of beneficiaries
• the number of creditors
• the amount of debt and taxes owed by the estate
• whether the estate owns assets in other states
• whether the deceased person owned a small business, and
• whether there are disputes between beneficiaries.

Other factors could affect how much a probate attorney charges. The important thing is to understand that more complex estates generally will pay more for probate than less complex estates.

Additional Probate Costs

Lawyer's fees aren't the only fees associated with probate. An executor—using estate funds—will have to pay court fees, appraisal fees, and accounting fees. In some instances, the executor might charge a fee for administering the estate.

Court Fees

All courts, including probate courts, charge fees for filing cases. Common probate court costs include:

• a filing fee to start probate
• fees for serving legal documents on heirs and creditors
• fees for recording deeds with the court's land records office
• fees to obtain certified copies of documents from the court, and
• fees for court reporters and filing motions in contested cases.

Probate court fees could be less than $100 to more than $1,000. The total cost of court fees depends on state law, the size and complexity of the estate, and whether there's a contested probate matter.

Appraisal Fees

When collecting and inventorying estate assets, the executor might need to use estate funds to hire an appraiser. The appraiser will determine the value of each asset—which will help the executor sell them or distribute them to beneficiaries.

Accounting Fees

An executor might need to hire an accountant to help manage the estate and file taxes for the deceased person or the estate—including estate and inheritance taxes. Having a professional help with these tasks can make the executor's job easier. Even though hiring an accountant is an extra cost for the estate, beneficiaries might feel more at ease that a professional is reviewing expenses and assisting with the management of money that eventually will be theirs.

Can an Executor Get Paid?

Executors who are family members of the deceased often don't expect compensation for their work. However, executors are entitled to payment if they desire. State laws vary as to how much an executor may be paid. The total compensation also depends on the value and complexity of the estate, the amount of work done, and what the probate court ultimately considers to be reasonable.

Understanding Fee Agreements

No matter what kind of fee arrangement you have, get the terms in writing. Some states require certain lawyer-client fee agreements to be in writing. Whether or not your state requires written fee agreements, it's a good idea to have one to ensure you know exactly how you'll be billed.

The fee agreement should cover:

• the type of fee (flat, hourly, or percentage of the estate)
• the hourly fee of each lawyer and legal assistant who might work on the estate (if your lawyer is billing you on an hourly basis)
• which lawyer will be your main contact at the firm
• an estimate of the total cost or the total number of hours
• whether there's a retainer and how and when it will be replenished
• expenses you'll pay separately, such as court fees, postage, and publication of legal notices
• how the lawyer's work will be described on the bills (the work done in each increment of time should be described, so you don't just get a bill for "legal services," "research," or "trial preparation")
• how often the firm will bill you, and
• when your payments will be due.

Having a written fee agreement can help you dispute any questionable bills from your attorney. If you ever question your attorney's fees, it's important to dispute the fees with your attorney promptly. (See "Attorneys' Fees: The Basics" for more information about fee agreements.)

Minimizing Probate Expenses

Probate can be expensive for the estate, and more expenses mean smaller inheritances for beneficiaries. Some expenses can't be avoided, but there might be ways to keep expenses down.

Probate Without an Attorney

Attorneys can cost the estate a lot of money. Some probate matters might not need an attorney. An executor who is comfortable with legal filings and simple bookkeeping or accounting might be able to handle probate without legal help. If an estate isn't complex and doesn't have many debts, then an attorney might not be needed.

If you're an executor and want to handle probate on your own, consider using a trusted Do-It-Yourself product to help. For example, executors of California estates can use How to Probate an Estate in California, Lisa Fialco (Nolo). Your local library or legal aid organization also might have DIY resources for probate.

Minimizing Fees for Attorneys

If you're an executor, you can keep the estate's legal fees down by using a lawyer only when necessary. For instance, you can do some tasks on your own or hire an attorney for the limited purpose of answering questions (instead of handling the entire probate process). These approaches are especially helpful in keeping costs down when you're paying an hourly rate.

If you plan to handle some simple tasks or most of probate by yourself, you'll need to make sure the lawyer knows what you'll be doing and what you want the lawyer to do. This division of tasks should be reflected in the written fee agreement.

Getting Help and Going Forward With Probate

One of the most important things about handling probate is communication. An executor should communicate effectively with the court, the beneficiaries, and the probate attorney—if there is one. When hiring an attorney, ensure that the written fee agreement makes it clear how everything will be billed and what tasks the lawyer is expected to complete for you. Your attorney must be licensed in the state where the probate case is located and should have knowledge of the state's probate laws and procedures. Talk to a few attorneys to see how much they charge and to see if you'd like working with them.

For more information (including state-specific probate articles), visit Nolo's Probate Court page.