Probate can be a costly and lengthy process that millions of people experience every year. Below, we briefly explain the probate process and its associated costs.
What is Probate?
Probate is the legal process of distributing and wrapping up a person’s estate on their death. Generally, an estate is “probated” when a person dies with or without a will. When a person dies with a will, his or her estate will generally be probated in accordance with the will. If a person dies without a will, also called dying intestate, the person’s estate will be probated according to the intestate laws of the state in which the person died.
Factors in Probate Costs
The length of time it takes to probate an estate and the cost of the same depends on a few different factors. It is important to understand that costs and the length of time it takes to wrap up an estate will vary because the types of estates and the amount of assets within an estate vary. Below are some factors that may increase both the cost and the length of time it takes to probate an estate:
- Size of estate: The larger the estate, the longer it will likely take to probate the estate. There are likely more assets to value and divide. A longer probate process usually leads to more attorney’s fees and court costs.
- Will contests: a will contest occurs when an “interested person” challenges the will, generally based on diminished mental capacity, undue influence, or fraud. The person contesting the will was usually a beneficiary of a prior will or is someone who would have inherited from the deceased had a will never been created. A will contest will likely result in further litigation, which will take more time and cost more money. For more information concerning will contests, please see our article on wills.
- Creditors: creditors must be notified when a decedent dies and each creditor is given the opportunity to come forward and seek payment for the debts owed through the deceased’s estate. If an estate has many creditors, and if the amount owed to a creditor is disputed, it may take a while to sort out how much money the estate owes to each creditor, leading to a lengthier and costlier probate process.
Types of Costs
There is not simply one cost when it comes to probating an estate. While attorney’s fees are perhaps what most people think of when it comes to probating an estate, below are some other common and associated costs:
- Court costs: it costs money to simply file and open a probate case. Court costs differ by state, although the initial filing fee alone is generally a few hundred dollars.
- Executor or administrator fees: an executor is a designated person in a will who is charged with administering the will. An administrator serves in a similar capacity, but is appointed by the court to act in this capacity when the deceased dies intestate. Executors and administrators are compensated for their contribution to probating an estate. The amount of compensation varies and may be specified in a will, or may be decided by state law.
- Attorney’s fees: not all estates require an attorney, though families may find it helpful to have an expert guide them through this process. We discuss attorney’s fees in more depth below.
- Accounting fees: these types of fees will depend on the size of the estate and the assets within it. Accounting fees may include the preparation of estate tax returns, though these may be filed by the estate’s attorney. Smaller estates may not require these fees.
- Appraisals and business valuations fees: because everything in a probate estate must be assigned a value, business interests, real estate, and personal property (such as jewelry, antiques, artwork, and vehicles) must all be appraised and/or evaluated and require date-of-death values. Appraisal fees for personal property can range from a few hundred dollars to a few thousand dollars, while business valuation fees are even more expensive.
- Bond fees: an executor or personal representative may be required to post a bond with the court. This bond serves to protect interested persons, including beneficiaries and creditors, against the wrongdoings of the personal representative or executor.
Probate Costs by State
Probate costs vary by state. Generally, an estate will pay around 3%-7% of the total estate value before probate is completed.
Many of the costs described above will vary based on either state law or the area in which the deceased died. Unsurprisingly, the cost of attorney’s fees will also differ depending on the state in which the attorney’s services are sought. However, the following are general figures for the cost of attorney’s fees to probate an estate. About 1/3 of probate cases see attorney’s fees under $2,500, 45% of probate cases cost between $2,500 and $10,000, and about 1/4 of probate cases see more than $10,000 in attorney’s fees.
States that have adopted the Uniform Probate Code (“UPC”), a model code that regulates the probate process, allow attorneys to charge “reasonable” fees for probating an estate. The following states have adopted the UPC:
- New Jersey
- New Mexico
- North Dakota
- South Carolina
- South Dakota
Some states limit the amount that a probate attorney may charge to a percentage of the estate’s value. These states include:
Other states set the amount an attorney may charge to probate an estate by statute.
In states where attorney’s fees are not set by statute, there are generally three ways an attorney may bill for probating an estate:
- By the hour: hourly billing is likely the most common method attorneys use. An attorney charges a specific hourly rate and multiplies that amount by the time spent working on the case. An attorney’s billable hourly rate will depend on the attorney’s experience and the city in which the attorney practices.
- Flat fee: a flat fee means an attorney charges one total fee for the entire process. This allows the client to know the total amount the attorney will charge to probate an estate.
- Percentage of estate: while not authorized in every state, some states allow attorneys to collect a percentage value of the estate as their fee.
Who Pays Probate Costs
Although the executor or administrator of an estate pays for a probate attorney, appraisers, and accountants, etc., these costs are actually born by the estate itself. So, while the executor may be writing the check, the estate actually pays the cost. Similarly, any fees an executor or administrator takes for fulfilling this role is paid by the estate.
Note, that if someone files a will contest and engages in litigation against the estate, the person contesting the will is responsible for his or her attorney’s fees regarding that contest. If the person contesting the will wins, the court, at its discretion, may reimburse this person for attorney’s fees. However, if the person contesting the will loses, it is unlikely he or she would be reimbursed for legal fees and costs.
- Avoiding Unnecessary Probate Costs, Investopedia, https://www.investopedia.com/articles/04/121304.asp#:~:text=Since%20probate%20proceedings%20can%20take,of%20the%20total%20estate%20value.
- How Much Does Probate Cost, The Balance, https://www.thebalance.com/how-much-does-probate-cost-3505268
- The Cost of Probate: a State Comparison, Legal Match, https://www.legalmatch.com/law-library/article/the-cost-of-probate-a-state-comparison.html
- Ready, Set, Pay! Will I Be Reimbursed for Legal Expenses After Probate in California?, Albertson and Davidson, LLP, https://www.aldavlaw.com/blog/ready-set-pay-will-reimbursed-legal-expenses-probate-california/
- Paying a Probate Lawyer: Costs & Types of Fee, All Law, https://www.alllaw.com/articles/nolo/wills-trusts/paying-probate-lawyer-costs-types-fees.html