The disbursement of a loved one’s estate is never easy. Let a qualified attorney guide you.
Usually when a person dies there is some kind of administration necessary to get the assets into the hands of the beneficiaries. If the decedent had a will (or no will in which case the state has used it’s intestate succession rules to determine the beneficiaries) and the assets totaled more than $150,000 then there will be a probate (discussed under my “Trusts and Wills” tab). Since the attorney’s fees are statutory (determined by law as a percentage of the estate) they are typically nonnegotiable and you are stuck paying the legal rate. That being said, the fees for some probate tasks which are outside of law’s statutory fee can be negotiated. One such fee is for overseeing the sale of any real property during the probate. This is often done at the lawyer’s hourly rate (and is subject to court approval at the end of the probate). For myself, I usually find that the statutory fee alone is a fair compensation and will waive such additional fees. Something to ask about when you are shopping around for a probate attorney.
In the case where you have a living trust and so can avoid probate, it still may be a good idea to involve a lawyer to assist with the trust administration. While it’s often possible for the person in charge (the trustee) to fumble through on their own, it’s not always wise to do so. A trustee is subject to a fiduciary duty to the beneficiaries and can be subject to personal liability if they make mistakes. The attorney’s fees charged for helping a trustee are not set forth in the law and so are entirely negotiable. Some will charge their hourly rate and some may charge a flat fee which is often a percentage of the fair market value of the trust assets. I charge an hourly rate and try to give my best guess estimate of the time I will spend. This is often difficult to do with pin point accuracy because you can never know for sure what unforeseen circumstances may come up during the administration. Although this is the case, I believe the alternative, the flat fee, can be worse and often unjustified. I’ve heard of attorneys who charge one percent claiming that it’s more than fair because the probate percentage’s are so much more. My thoughts are yes that’s true but the decedent did a trust to avoid a probate so why are we using the probate fee’s as a benchmark? Also, just because an estate is large doesn’t’t mean there will be more work involved. A trust with only one asset, a $1,000,000 house, and one beneficiary would generate attorneys fees of $10,000 at 1%. Billed hourly, that would equal attorney time of over 28 hours at $350 an hour. It’s quite possible this administration would take a lot less than 28 hours of attorney time. Of course the attorney who charges a flat fee can get the short end of the stick as well if unanticipated time consuming events do occur. Knowing this possibility is the reason why many attorneys tend to pad a flat rate and often end up making a lot of money on an uneventful administration. Whichever way you choose to proceed, make sure you have a clear understanding of the fee arrangement and that it is clearly spelled out in the attorney’s retainer agreement.