Thanks to Veronica Baxter, a writer, blogger, and legal
assistant working primarily for
Philadelphia civil appeals lawyer Todd Mosser,
Esq., for putting together this article.
Attorney Fees for
Probate in Florida
Prospective clients invariably ask, how much will
probating a will cost? The answer is, it depends. This article will tell you
the potential fees relative to the size of the estate and define ordinary and
exceptional legal services.
Attorney’s fees are usually the largest expense
in probate. The attorney for the personal representative of an estate is
entitled to “reasonable compensation from estate assets.” The attorney is paid
from the assets of the estate, not by any individual. Although the attorney and the personal
representative will sign an agreement regarding fees, the court can override
that agreement if it deems that the fees are not “reasonable.”
The issue of whether attorney fees are reasonable
does not often arise in Florida because Florida code provides guidance on fees
for “ordinary service” based upon the value of the estate:
1.
Estate valued $40K or less - fee
$1,500
2.
Over $40K to 70K - fee $2,250
3.
Over $70K to $100K - fee $3K
4.
Over $100 to $1M - fee $3K 3%
estate value over $100K
5.
Over $1M to $3M - fee $30K plus
2.5% estate value over $1M
6.
Over $3M to $5M - fee $50K plus 2%
value over $3M
7.
Over $5M to $10M - fee $90K plus
1.5% value over $5M
8.
Over $10M - fee $165K plus 1%
value over $10M.
But there are circumstances under which this
statutory scheme produces unreasonable attorney fees.
Unreasonable Attorney Fees for
Probate in Florida
Let’s say the Smith estate is comprised only of
$10,000 in a bank account, and the Jones estate is comprised only of $1,000,000
in a bank account. The work involved in probating these two estates is
comparable, but the Smith attorney would receive $1,500, and the Jones attorney
would receive $30K. Is it reasonable for the Jones attorney to be compensated
so much more than the Smith attorney under the statutory scheme?
Probably not. It is not mandatory that the
statutory fee be paid, and under these circumstances, the personal
representative and the attorney should discuss what fee is reasonable prior to
signing a retainer agreement. Many estate attorneys use a flat-fee system based
upon the work required to avoid any unfairness arising from the statutory
scheme.
The Florida Statutory Scheme
Applies to “Ordinary” Services
Ordinary legal services are typically included in
the base probate fee and are services such as:
●
Review and analysis of
testamentary documents;
●
Explanation and advice regarding
testamentary documents;
●
Preparation of any court filings;
●
Arranging for the appointment of
the client as personal representative (PR);
●
Preparation and service of the
required notice upon interested persons;
●
Advising PR regarding obligations
to the court, interested persons;
●
Advising PR regarding procedural
requirements;
●
Advising PR regarding duty to
locate, protect, insure, and otherwise manage assets of the estate;
●
Advising PR regarding the prudent
investor rule;
●
Advising PR about duty to the
estate’s creditors;
●
Advising PR about clearing title
and tax liens;
●
Advising PR about ethical
responsibilities such as avoiding self-dealing, conflicts of interest;
●
Advising PR of duty of
impartiality and obligations to creditors and beneficiaries.
Attorney Fee for “Extraordinary”
Services In Florida
What is “extraordinary service”? This varies
case-to-case but might include any unanticipated work that arises such as:
●
Will contests;
●
Will construction;
●
Court proceedings for
determination of beneficiaries;
●
Contested claims;
●
Elective share proceedings;
●
Apportionment of estate taxes;
●
Proceeding for the substitution or
removal of a personal representative (PR);
●
Objection to accounting or other
act of the PR;
●
Any other adversarial proceeding
or litigation by or against the estate or the PR.
Fees for services such as providing tax advice,
preparing tax returns for the estate, and selling any real property might also
be considered extraordinary.
In January of 2018 a Florida court determined that the following
were not “extraordinary services:”
●
an outside attorney locating 53
interested persons for the purpose of notice;
●
an outside attorney striking a
late claim;
●
an outside attorney’s review of an
income tax return that was already reviewed
by the personal representative and a CPA;
●
outside attorney’s paralegal
performing administrative secretarial work such as preparing mailings,
processing paperwork, scheduling conferences, and hearings.
The court held that “while parties have the right
to employ as many lawyers as they choose, the Court will not assess lawyer fees
for or against any party for more than one lawyer for a matter in which no more
than one lawyer is required.”
Other Costs in Probate in Florida
Costs would include the cost of items such as
court filing fees and publication fees, as well as the cost of actions such as
accounting fees if needed. These can
vary widely depending upon the complexity of the estate.
Every probate matter will incur the filing fee
for the filing of the Last Will and Testament and the Notice of Administration.
Is Probate Necessary in Florida?
Whether it is necessary to probate a will depends
upon the value and complexity of the estate as well as the nature of the assets
of the estate. If an estate has no real property and the only assets in the
estate are exempt from creditors’ claims or don’t exceed the amount of final
expenses, probate may not be necessary.
This is called disposition without administration. In this case, you can avoid paying attorneys
fees for probate.
Certain assets do not need to be probated under
Florida law. For example, if the decedent owned a car, title to that car can
transfer to heirs without being probated. If the decedent owned property as a
joint tenant, the property passes to the other joint tenant automatically, such
as when a married couple owns real property or a joint bank account. Assets for
which the decedent designated a beneficiary such as a bank account, a
retirement account, and life insurance proceeds pass automatically to the designated
beneficiary.
Also, for “small estates” (those worth $75,000 or
less) the probate process is streamlined pursuant to summary administration.
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