Who Pays for a Probate Attorney?

An early task of an executor or administrator of an estate in probate is determining whether legal counsel needs to be hired. In most situations, unless an estate is very simple, and the court permits the use of a simplified probate process, retaining a lawyer typically is a wise course of action. When it comes to hiring a probate attorney, you may have a number of important questions. Included on the list is likely to be “who pays for a probate attorney?”

The Role of an Executor or Administrator in Retaining Legal Counsel

In the grand scheme of things, when it comes to the probate process, the executor or administrator is the individual responsible for generally overseeing the probate of an estate. This authority is subject to varying degrees of judicial or court oversight, depending on the type of probate procedure being pursued. If the most formal probate process on the books in California is being used (for example), there will be a good amount of judicial or court oversight. If the informal probate process is permitted, very little court oversight occurs.

The executor or administrator generally has authority to hire an attorney at his or her discretion. There can be instances in which a court steps in and directs an executor or administrator to retain legal counsel, but that is not a commonplace occurrence.

Even though an executor or administrator is considered the “personal representative” of the estate in probate, and even though the executor or administrator retains legal counsel for the estate, there are limits to that individual’s official responsibilities. One of them is that the executor or administrator is not responsible for paying attorney fees for the estate in probate.

There is one exception to this rule. If the executor or administrator makes a mistake due to significant negligence or inappropriate intentional conduct and a lawyer must get involved to repair the damage, a probate court is likely to assess attorney fees to be paid by that individual. For example, if an executor or administrator consistently fails to properly prepare documents in the case and a lawyer needs to straighten out the situation, the personal representative of the estate will be charged with paying attorney fees for that effort. (The executor or administrator is also likely to be removed from the position by the court as well.)

The Estate Pays Attorney Fees

When an attorney is hired to assist with the probate process, the estate of the deceased individual is the entity responsible for paying attorney fees. In other words, the lawyer submits bills for fees for services to the estate for payment.

Manner in Which Attorney Fees Are Assessed

Attorney fees in probate cases are assessed against the estate in one of three ways:

  • A lawyer may charge by the hour
  • A lawyer may charge a flat, set fee for services
  • A lawyer may charge a percentage of the value of the overall assets of an estate

The fee scheme based on the value of the assets of the estate more often than not occurs in complicated estate cases involving larger amounts of money. The most common fee arrangement is the hourly scheme.

Role of the Court in Attorney Fee Payments

If a formal probate process is being pursued, the court is likely to require its approval before attorney fees are paid. This process involves the attorney submitting a bill to the executor or administrator. The personal representative in turn submits the billing statement to the court and asks for payment approval. The presiding judge reviews the billing and either approves or disapproves of payment. If an attorney is billing by the hour, requests for payment can be submitted to the court at different intervals as the case progresses.

Attorney Fees When Will is Contested

One of the more potentially time consuming and challenging events that can occur in a probate case is a challenge to the will. If that occurs, legal counsel for the estate nearly always is necessary. If the person challenging the will loses the case, a probate court may order that person to pay the estate’s attorney fees. This is likely to occur if the probate court determines the challenge to the will to be without merit. Sometimes the court orders payment of attorney fees on its own volition. In most cases, the estate files a request or demand for payment of attorney fees when it prevails in a will challenge case.

Written Contract for Services and Fee Agreement

As part of hiring an attorney to represent an estate in a probate case, a written agreement must be obtained setting forth the specific fee arrangement. In some cases, a court will need to approve the proposed fee arrangement before it goes into effect. This requirement may exist if a formal estate process is being used in a particular case.