Who pays Probate Attorney Fees?

Who Pays Probate Attorney Fees?

Losing a loved family member is difficult, and having to face the probate process can be downright frustrating. Whether they had a will or not, a probate attorney can make things easier by advising the estate’s executors on how to navigate things legally. In New York, you do not have to hire a probate attorney. But chances are that you will need one to help ease your mind and make the process a lot smoother.

Probate matters are time-consuming all on their own. So, usually what you see in a client seeking legal counsel or representation regarding an estate matter, is concern etched visibly on their features. 

A lot of the time, a huge part of that concern is the cost of the proceedings; and this is usually foremost on their minds. Many find it intimidating that with probate lawyers, there is sometimes no price tag in sight. Many other do not even have any idea of what they have to pay in the end. 

Of course, much of that concern is sometimes misplaced. It is not all estate proceedings that involve complicated, capital-intensive legal work. Some other cases have limited assets and the legal work is greatly reduced.

Questions still come up regardless. Who pays probate attorney fees? What is the average cost of a probate attorney? Our New York probate and estate attorney explains all you should know.

Why would you need or pay a probate attorney in the first place?

Engaging the services of a Probate attorney could very well be the best decision you ever made. Quite frankly, it should be considered more as an investment and not an expense. 

Worthy of mention also is the fact that, generally, probate courts are legally barred from providing you with any legal advice that might help you navigate the confusing maze of a process we call probate administration. Looking to legal aid clinics won’t help you either, as nearly all of them do not offer probate services. 

Whether at the early stages, or right in the middle of probate administration, you will need a probate attorney to oversee and assist your duties as a personal representative. A probate attorney may assist in the execution of the decedent’s estate. 

If you are instead a beneficiary, and only have questions about the execution and/or validity of a Will or Bequest, you will also need the legal advice of a probate attorney. 

A probate attorney may help with distributing assets, satisfying debts, and other affairs that deal with an estate when a person dies. Reasons abound to need the services of a probate attorney, and there are a number of factors to consider when determining who pays probate attorney fees.

Who pays probate attorneys and how?

In New York, the probate attorney hired by a duly appointed executor will have his or her fees paid from the underlying probate estate. But these fees must be approved by the Surrogate's Court. This means it is the estate that pays the probate lawyer’s fee—it doesn’t come out of the executor’s pocket.

On the other hand, those who are contesting the will must generally pay their own legal fees. If you are considering the option of contesting a will, it is best to consult with our experienced New York probate lawyer first. Even if only to ask the question; “who pays probate attorney fees?”. 

There are certain exceptions where the estate may pay the probate attorney of another party. However, these circumstances are often strict and do not occur so frequently that you should base your decision to contest the will on their existence. If your circumstances are such that you have a good case to request such fees, your attorney will let you know.

Not to forget, there is a growing number of estate/probate mediators who would have the experience to help both sides come to a resolution--which could cost significantly less money than a Will contest.

If the executor (or their attorney) does not trust your choice for a mediator, suggest both sides find their own mediator (or attorney) and then authorize them to select a third and final mediator. 

NY Probate Attorney fees in relation to Wills contests 

As we have explained above, probate attorney fees are usually paid from the estate being administered by the executor, and not from the executor’s personal funds. Of course, payment is subject to the approval of the NY Surrogates Court.

If you are both the executor and the only inheritor, then the fee does, in essence, come out of money that’s yours in due time. Otherwise, the cost is taken from the estate before assets are distributed to the people who inherit them.

However, when it comes to legal expenses arising from Will contests, or other probate work not covered under the estate, things can be much different. In this case, the person activating these will contests or such other matters may be personally responsible to pay the costs and legal expenses involved. 

These costs usually arise from miscellaneous expenses that arise during a probate or other court proceeding. Including court filing fee, postage, publication of legal notices in the newspaper, property appraisals, and recording fee for real estate deeds. They can add up to a considerable sum, depending on the circumstances. 

Concurrently, you may also be charged an official expense for probate work. This may be charged;

• By the hour.
• By a flat fee,
• On a contingent basis (percentage)

For most cases, probate attorneys in New York charge by the hour, ranging from $400 to $800 per hour. On average, the amount in question is usually about $400 per hour, depending on the attorney’s expertise and reputation. Attorneys typically require a retainer deposit of about $5,000 to get started.

For a few types of smaller cases, estate attorneys can charge a flat fee of $3,000 minimum. Usually these are straight-forward cases, and the probate attorney fees are calculated as a flat fee of about 5% of the estate.

For a very limited number of cases, an estate attorney can agree to work on a contingency fee. However, these situations are tightly regulated and may not apply in all cases. Overall, your best bet to understand how a probate attorney will be paid in your case is to speak with an attorney to understand how their fee policy works, and the legal issues you should keep in mind. 

Speak to a Probate Attorney today

With attorney fees, when you have to pay them, it is important to realize that paying less can mean paying more. And experience and reputation are worth the premium.

Where you are the executor of an estate in New York, its also important to be aware of costs and monetary issues, and seek insights from an experienced probate lawyer when you lack clarity. This way you can save yourself the trouble that can often come fast on the heels of errors in the probate process 

You should discuss your concerns, if there are any, with an experienced probate attorney. Attorney Jimmy Wagner can help with this, and assist you in making the best decisions for the estate. Get in touch with our experienced New York estate attorney today. Contact us at 929-477-8889 for help.