Some of the most common concerns about probate involve probate lawyer fees and how much the whole process will cost. The answer can change depending on the size of an estate and any provisions in the will.
Here's a primer on probate law and lawyers, including how the probate process works, how long it takes, potential costs, and how to avoid probate altogether. By learning the basics of probate lawyer fees and court costs, you can manage your estate’s finances with confidence.
Background on the probate process
Here's a breakdown on what probate is, how long it lasts, and how much it costs.
What is probate?
Probate is the court-supervised process of administering the estate of a deceased person. This includes paying off debts and distributing property. An executor named in the deceased person's will oversees the estate. If there isn't a will, an administrator or personal representative appointed by the court will help.
The basic steps of probate involve:
1. Filing a petition to open the estate and set a hearing to appoint a personal representative
2. Giving notice of the hearing to heirs and beneficiaries
3. Conducting an inventory of the estate (compiling all assets and debts)
4. Giving notice to all estate creditors
5. Paying debts and distributing estate property to beneficiaries
6. Closing the estate
How long does probate take?
Probating a will can take between a few months to more than a year, although most estates close within a year. How long the process lasts depends on factors like:
1. Whether the will was straightforward and unchallenged
2. How well organized the decedent was (i.e., whether the estate was “in order” with a will and other important legal documents such as deeds and titles)
3. The value of the estate—the more assets or debts an estate has, the longer the probate process will last
4. Whether estate tax is owed, since Internal Revenue Service (IRS) involvement can prolong probate
How much does probate cost?
Probate costs vary from location to location, but most tally up to 3% to 7% of the estate's value. However, the costs can go much higher and tend to do so as the value of an estate rises. The higher the estate's net worth, the higher your probate costs will rise.
What is a probate lawyer?
A probate lawyer is a licensed attorney who specializes in probate matters in and out of court. A lawyer for estate planning or will writing shares a similar area of expertise, but a probate attorney focuses on estate administration after someone’s death.
What does a probate lawyer do?
While some probate lawyers help plan your estate, most help administrators and personal representatives in probate court. A probate lawyer will typically:
1. Oversee a will’s verification in probate court
2. Distribute a deceased person’s assets and pay their debts
3. Respond to legal challenges concerning the estate
4. Manage estates when the deceased person leaves no will
5. File documents required for probate
6. Manage the deceased’s final tax filings and tax returns
7. Appraise probate assets
8. Collect on life insurance
How lawyers charge probate fees
Probate lawyer fees, also called estate lawyer fees, are charges paid directly to an attorney for legal services. Regardless of the fee structure, clients should request a fee agreement in writing to understand the payment schedule and services included fully.
Probate attorneys generally use these fee structures:
- Many probate lawyers charge an hourly rate, which varies by location and how specialized and/or experienced the attorney is
- Some probate attorneys charge a flat fee
- Attorneys can charge upfront retainer fees to secure their services over a period of time.
- Lawyers charge contingency fees when their payment relies on winning a case or securing a certain amount for their employer.
- Other probate lawyers request a percentage of the estate's gross value. Those fees can appear unreasonable to some clients (especially those with larger value estates) because the percentage comes from the estate's gross value before subtracting debts such as mortgages on properties.
Factors affecting the cost of a probate attorney
Depending on your estate or the lawyer’s experience, probate attorneys come at different costs. The variables affecting their rate include:
- The lawyer’s quality: Experienced attorneys charge more for their services.
- Type of service: Basic probate assistance costs less than specialized will arrangements or property disputes.
- Complexity of legal matter: Some wills may contain complicated estate plans or outright contradictions the lawyer must resolve.
- Length of the entire process: Fast turnarounds lead to smaller legal fees than drawn-out probate proceedings.
- Location of the estate: State policies can affect how much probate attorneys earn for their work.
When do you need a probate attorney?
Hiring a probate lawyer is not required. Still, if you are an administrator or executor of an estate, you may want to speak with an attorney for advice. Before deciding to hire a probate attorney, ask yourself:
- How complicated is the estate?
- Did the estate owner pass away with or without an authorized will?
- Is a will contest possible?
- How does the deceased’s type of will affect their estate?
- Are you able to meet the responsibilities of an executor?
Types of probate fees
Attorney fees aren't the only costs involved in probate. Going to court, appraising assets, and recording documents accrue their own costs. The most common types of probate fees include:
- Personal representative fees
- Court fees
- Publication of notice fees
- Accounting fees
- Appraisal fees
- Recording fees for deeds
Probate fees by state
While probate fees range from 3%–7% of an estate’s value, state policy can affect the cost. Eighteen states adopted the Uniform Probate Code (UPC), a regulation stating attorneys can only charge “reasonable fees” for their probate services. These states adopted the UPC: Alaska, Arizona, Colorado, Florida, Hawaii, Idaho, Maine, Massachusetts, Michigan, Minnesota, Montana, Nebraska, New Jersey, New Mexico, North Dakota, South Carolina, South Dakota, and Utah.
Additionally, some states regulate probate attorneys' fees through statute, forbidding probate lawyers from charging more than a certain percentage of the gross estate value. They include: Arkansas, Missouri, California, Montana, Florida, Wyoming, and Iowa.
Simplifying or avoiding probate altogether
While an estate administration lawyer and probate can cost a lot, you can shorten or avoid the process. Bear in mind these opportunities depend on state law and the size of your estate.
Do all wills need to go through probate?
As a general rule, almost all wills go through probate. However, some estates can avoid probate by meeting state-specific criteria. For example, Florida lets descendants inherit property without probate if they continue to pay property taxes and don't sell the asset.
To learn if your state puts all wills through probate, consult an attorney.
Can you shorten the probate process?
An estate with relatively few assets or lesser gross value may access a simplified probate process. Bear in mind that not all states will allow shortened probate. The states that do generally refer to this as the "small estate probate process." While the specific criteria depends on local policy, you can usually shorten probate by:
- Keeping your estate under a certain size or monetary value
- Implementing state-specific provisions into a will
Note: The average duration of probate also depends on the state. For example, California probate usually takes between six to 18 months. But Texas probate tends to wrap up in three to six months.
How can an estate avoid probate?
Common estate-planning methods for avoiding probate include the following:
- Joint ownership of property: Because property passes directly to another owner, it doesn't have to go through probate.
- Designation of intended beneficiaries directly on certain accounts: Life insurance, retirement, bank pay-on-death (POD) accounts, and investment transfer-on-death (TOD) accounts pass funds outside of probate.
- Creation of a living trust: Because property contained in the trust gets distributed to the intended beneficiary, it avoids probate.
FAQs about probate lawyers and processes
Still have some questions? Here are some FAQs about probate and estate planning.
Who pays a probate lawyer?
A probate attorney receives payment directly from the estate. Neither the executor nor the administrator has to pay the attorney.
What assets need to be listed for probate?
Probate assets refer to property that can only reach beneficiaries after going through probate. Here are some of the most common examples:
- Real estate
- Titled assets owned solely by the deceased person
- Personal possessions like jewelry, clothing, and collections
Non-probate assets can go straight to beneficiaries. They typically include:
- Assets designating a trust as beneficiary or titled in the name of a trust
- Life insurance policies, pensions, 401(k)s, and IRAs
- Bank accounts with beneficiaries
- Jointly owned property with survivorship rights
If you need additional help deciding which assets go to probate, contact a lawyer for estate-planning advice.
How do you set up payable-on-death registrations?
You can create a payable-on-death (POD) account by filling out your bank’s beneficiary forms. Payable-on-death registrations set aside money that goes straight to beneficiaries. While the funds won’t go through probate, they still face inheritance tax.
After creating a registration, you can use your bank’s POD forms to:
- Add beneficiaries
- Remove beneficiaries
- Adjust the amount in your account
- Transfer funds out of the account
Why should you revisit your beneficiary designations?
Beneficiary designations may conflict with each other or unintentionally affect your estate plan. After will revisions or major life events, you might miss contradictions in your will. If left alone, these can extend the probate process. In other cases, your assets might not go to the beneficiaries you intended.
To avoid this, hire a trust and will attorney to review your will after each revision.
Find the right probate attorney for your estate
While probate looks daunting, a great attorney can streamline the process. By understanding probate lawyer fees and the probate court process, you can see how attorneys benefit an estate and its beneficiaries.
If you're involved in a probate case and need legal advice, LegalZoom can put you in touch with an attorney who can answer your questions. Sign up for the personal legal plan and receive unlimited 30-minute phone consultations on new legal matters, including estate planning and other legal questions for a low monthly fee.
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