One of the most common questions people have regarding probate is about probate lawyer fees and how much probate is likely to cost. Since the answer depends on a variety of factors, it’s important to understand some basics about the process to better estimate probate cost.
Below you’ll find a short primer on probate law and probate lawyers, including discussions of how the probate process works, how long it takes, potential costs, and how probate can be avoided altogether.
What does probate mean?
Probate is the court-supervised process of administering the estate of a deceased person, which includes paying off debts and distributing property to heirs. The estate is handled by either an executor named in the deceased person’s will or, if there was no will, by an administrator appointed by the probate court. This person is often simply called a “personal representative.”
The basic steps of probate involve the following:
(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.
What is a probate lawyer?
A probate lawyer is a licensed attorney who specializes in probate matters. Probate lawyer fees, also called estate lawyer fees, are monies paid directly to the attorney for legal services; these are not the same as “probate costs” in general, which can also include the following:
- Personal representative fees
- Court fees
- Publication of notice fees
- Accounting fees
- Appraisal fees
- Recording fees for deeds
A probate lawyer’s fees are paid for by the estate, not by the executor or administrator.
Many probate lawyers charge an hourly rate, which varies by location as well as by how specialized and/or experienced the attorney is (the more specialized and/or experienced, the higher the rate).
Some probate attorneys charge a flat fee, which is just what it sounds like: they quote a fee for handling the case.
Other probate lawyers request a percentage, which is often based on the gross (not net) value of the estate. Some states, such as California, regulate probate attorney’s fees through statute, forbidding probate lawyers from charging more than a certain percentage of the value of the gross estate. Still, the fees can appear unreasonable to some clients (especially those with larger value estates) because the percentage comes from the gross value of the estate and not what it’s worth minus debts such as mortgages on properties.
Regardless of the type of fee arrangement, clients should request a fee agreement in writing to be absolutely sure of the payment structure and services included.
How long does probate take?
Probating a will can take anywhere from a few months to more than a year, although most estates are closed within a year. How long the process takes can be influenced by many variables including whether the will was straightforward and unchallenged and also by 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 at the time of his or her death.
The value of the estate is another factor that can influence how long the probate process takes. Logistically, the more assets and/or debts an estate has, the longer the probate process is likely to be. Moreover, if an estate has a high enough value to be subject to tax, that can also prolong the process as then the Internal Revenue Service (IRS) also becomes involved.
On the other hand, an estate with relatively few assets and/or lesser value can benefit by the simplified probate processes available in some states.
How much does probate cost?
Probate costs vary greatly from one location to another, but they commonly tally up to be somewhere in the range of 3% to 7% of the estate’s value. They can go much higher, though, and tend to do so as the value of an estate rises. Indeed, the higher the value of the estate, the higher the probate costs are likely to be.
Can an estate avoid probate?
Yes, through smart estate planning, an estate can avoid probate, and, accordingly, probate fees. Common estate planning methods for avoiding probate include the following:
- Joint ownership of property, because property passes directly to other owner without having to go through probate;
- Designation of intended beneficiaries directly on accounts such as life insurance, retirement, bank (“pay-on-death” or POD), and investment (“transfer-on-death” or TOD), because, again, the account passes directly outside of probate;
- Creation of a living trust, because property contained in the trust gets distributed to the intended beneficiary without having to go through probate.
Remember that hiring a probate lawyer is not required during the process, but if you are an administrator or executor of an estate, you might want to speak with an attorney for advice.
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