When a will is in “probate,” it means the law is determining how legal and enforceable a will is.
Just because something is in a will, doesn’t mean it has to happen, or even that it can happen. That’s the duty of the executor and the probate attorney to figure out.
But how much does a probate attorney cost?
Unfortunately, that’s a bit of a complicated question, because a probate attorney can and does perform a wide variety of functions. They can have only a small duty, or they may be around before, during, and after the will is created and then executed.
First, let’s get into the function of a probate attorney, and why you need one.
What is a Probate Attorney?
If you’re not familiar with the term, “probate” is the process of the official proving of the will, of establishing validity and legality.
Though they can often be confused a will’s executor is not the same as a probate attorney. An executor is usually named by the decedent (the dead person) in the will and is most often a family member. It’s their job to make sure the terms of the will are being carried out and that everything is going where it’s supposed to go.
A probate attorney, on the other hand, is more the legal arm of the executor. It’s their job to aid the executor in navigating the legal morass that is the complicated post-life of the recently deceased. You may have also heard the term “estate attorney,” “probate lawyer,” or an “estate lawyer,” but they’re all the same thing and perform the same function.
They help the executor (or administrator) through every step of the probate process. Often the probate process is a simple, if sometimes long, affair, handled without too much trouble. However, when contestations, mental health issues, and legal enforceability problems come up, you’ll be extremely glad you hired that probate attorney to guide you through.
A Probate Attorney Before Death
One of the most useful jobs to hire a probate attorney for is before you or your loved one (or your client) die.
A probate attorney can help you or your loved one draw up a will. They can assure that all legal procedures are properly followed, that all terms of the will are normal and enforceable, and that there are redundancies in place in case a chosen executor has themselves passed away or is unable to perform their duties when the time comes.
Prices and fees may vary depending on local laws, the complexity of the will, and the size of the estate. However, you can generally have a lawyer write up a will for a flat fee. This can change drastically, but a simple will from a not-terribly-busy lawyer could cost as low as $400, though prices between $800-$1200 are not uncommon.
Some lawyers even offer full estate planning, including living wills, advance directives, last will and testaments, living trusts, and giving power of attorney to likely executors or other important or necessary persons.
Those packages obviously cost more but may save you and your family a lot of grief in the long run if you’re estate and/or will are complex.
Hiring a Probate Attorney to Help the Executor
The truth is, most wills (and the estates they handle) aren’t large or complex enough to really need a probate attorney. However, there are a few good reasons for hiring a probate attorney when it’s time to execute a will.
You are the executor and, due to either being swamped with responsibility or grief, you feel you may need some assistance in this complicated matter.
The will is complicated, or the estate is very large, encompassing investments, rental properties, alternate sources of income, oversees account, partial shares in companies, etc. These kinds of situations are exactly what a probate attorney is for.
Reason 3: You believe beneficiaries of the will (or people who didn’t end up being beneficiaries) are going to contest the will in some way or attempt to render the will null and void due to mental illness or a deficient state to make decisions by the decedent. In this more adversarial probate process, a probate attorney is 100% necessary and could pull your bacon out of the fire.
Obviously, the fee for such actions can change based off the length of the probate process, number of claims, size of the estate, and the like. Generally, the fees of probate attorney come out of the estate, rather than from the executor of the will.
These fees include things like appraisals, accounting, court fees, publication of notice, personal representative, and recording deeds. These fees are usually charged hourly, and only on an as-needed basis. However, it’s not unheard for probate attorneys to just save themselves the book-keeping (and save the executors the “on the clock” anxiety) and just charge a flat rate to take care of the whole process.
A Probate Attorney for the Beneficiary
There’s another reason you may wish to hire a probate attorney: you’re on the other side of the equation from the executor. If you’re a beneficiary, potential beneficiary, or feel you should have been a beneficiary of a will, it may be smart to hire a probate attorney to make sure all laws, regulations, and rules are being followed to the letter.
If you feel the will was written under duress, forged, or put together by a decedent who was not legally able to make decisions due to mental health concerns, you can hire a probate attorney to challenge the will.
Wills are incredibly complex, legally binding contracts that involve multiple parties: it may be a bad idea to attempt to navigate those waters by yourself. Council can protect you, protect the decedent’s intentions, and even your family if you feel the will and estate are being exploited by outside parties.
Is There a Limit on Probate Attorney Fees?
If you’re worried about a lengthy probate process sapping the entire estate of it’s worth, don’t. Most states in the US have laws preventing the probate attorney from draining all of the cash and value.
Usually, a probate attorney’s fees are capped at a given percentage of an estate’s total value. This is done to protect both executors and beneficiaries from predatory practices, and to hopefully incentivize lawyers to end the process as quickly as possible.
How Long is the Probate Process?
There is no set amount of time, and, in fact, the time spent in probate can vary wildly depending on the circumstances. If there’s no probate attorney because the will is simple, the estate small and straightforward, the process could take less than a month.
When the estate is large, the beneficiaries many, and the will complex or riddled with controversy, probate can take a year or longer. If anything actually goes to arbitration or court, expect it to take longer than that.
Estate law is not a fast process. If the beneficiaries all hire their own representative or probate attorneys, if there’s an investigation into the legality of the will, every single issue needs to be addressed before probate can end.
The Final Total of Probate Attorney Fees
So, you ask: what can I expect to pay for the full probate process? According to LegalZoom, the average rate of probate attorney fees can be anywhere from 3% to 7% of the estate’s total value. Remember that that is the average cost. The amount can be much higher, and eventually hit the legal cap if there are multiple issues with the beneficiaries or the will.
Can You Avoid Probate Entirely?
If this whole probate process is sounding like a logistical nightmare, there are paths you can take to avoid or extremely shorten the probate process.
You can have your attorney create a living trust, where all property and assets are protected and are already built-in with intended beneficiaries. If the decedent has a living trust, there’s no need for probate (at least for all resources in the living trust). Instead, the beneficiaries receive their property and assets immediately.
You can also avoid probate on a case-by-case basis by designating beneficiaries on your various accounts. For instance, if you set up a “pay on death” contingency with your bank, all money is transferred immediately to the specified party. This applies to your retirement benefits, life insurance policies, and event investments.
The last method is joint ownership. If you make your beneficiaries partial owners of your property before death, there is no change of ownership – they simple become full owners and probate is bypassed. Unfortunately, all of these steps have to be taken before death and require their own not-insignificant amount of paperwork.
Finding a Probate Attorney
Estate planning and estate execution can be a difficult process, both emotionally, financially, and socially. A probate attorney can shoulder those responsibilities for a small percentage of the estate and can often be well worth the price in peace-of-mind alone.
Websites like Avvo can help you find a probate attorney near you. Whether you’re an executor of a will, a beneficiary, or simply someone who wants to protect their family for the future, a probate attorney can be a massive help.