Florida Probate Lawyer Costs and the Attorneys’ Fees Statute in Florida

Posted By on March 10, 2015

One of the biggest questions involved in probating someone’s estate after their passing is how much will the probate process before a Florida Probate Court itself cost? There are variables here depending upon each case, of course.

Different kinds of property may involve unique expenses. Having investments in other states or foreign countries can warrant specific expenses in the transfer of ownership and clearing of creditors, payment of taxes.

Larger estates will bring more probate costs than smaller estates, especially for those who have not done advance estate planning (where many assets can be removed from the probate process).

However, one cost that may be concretely identified and known — even in advance of any probate needs — is the cost that the Florida probate lawyer will bring to the table. This is because the Florida Legislature has passed specific Florida laws that establish and set attorneys’ fees for Florida estates moving through the Florida Probate Court judicial process.

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Florida Probate Lawyer Fee Schedule Per Florida Statute

According to Florida Statute 733. 6171, the following Florida Probate Lawyer Fee Schedule applies in Florida Probate matters. Homestead properties are not included here, and the lawyer’s fee is based upon not only the assets included in the probate estate at the time of filing, but any income that is generated by these assets during the probate case.

From Florida Statute 733.6171(3) the lawyer’s fee schedule is as follows:

(a) One thousand five hundred dollars for estates having a value of $40,000 or less.
(b) An additional $750 for estates having a value of more than $40,000 and not exceeding $70,000.
(c) An additional $750 for estates having a value of more than $70,000 and not exceeding $100,000.
(d) For estates having a value in excess of $100,000, at the rate of 3 percent on the next $900,000.
(e) At the rate of 2.5 percent for all above $1 million and not exceeding $3 million.
(f) At the rate of 2 percent for all above $3 million and not exceeding $5 million.
(g) At the rate of 1.5 percent for all above $5 million and not exceeding $10 million.
(h) At the rate of 1 percent for all above $10 million.

Does This Always Apply? No.

This schedule is set up for efficiency in probating general probate matters where there isn’t any big surprise, allowing for payment of the probate lawyer without the need for a judge to review the legal fees and judge them to be reasonable.

If the Florida probate attorney’s bill comes within these amounts in the schedule, it is deemed to be “reasonable” and ready for payment by the estate. As the Florida Statute explains, “Attorneys for personal representatives shall be entitled to reasonable compensation payable from the estate assets without court order.”

However, the Florida probate lawyer and the estate’s personal representative (along with those “….bearing the impact of the compensation”) may contract around this schedule. For many reasons, there may be a need for legal compensation to be paid differently than what is set out in this general fee schedule. A written agreement can be made that is different than this Legal Fee Schedule and that is fine under Florida law and is usually done when everyone agrees that specific legal work is needed in the case.

What might that be? Florida probate lawyers may need to take steps to insure that there is no unwarranted will contest in the case, as well as defending against a challenge to the probated will should one be filed. That’s one example.

Other “extraordinary services” defined by Florida law here include:

  • will construction.
  • proceeding for determination of beneficiaries.
  • contested claim.
  • elective share proceeding.
  • apportionment of estate taxes.
  • any adversarial proceeding or litigation by or against the estate.
  • representation of the personal representative in audit or any proceeding for adjustment, determination, or collection of any taxes.
  • tax advice on postmortem tax planning.
  • review of estate tax return and preparation or review of other tax returns required to be filed by the personal representative.
  • preparation of the estate’s federal estate tax return.
  • purchase, sale, lease, or encumbrance of real property by the personal representative or involvement in zoning, land use, environmental, or other similar matters.
  • legal advice regarding carrying on of the decedent’s business or conducting other commercial activity by the personal representative.
  • legal advice regarding claims for damage to the environment or related procedures.
  • legal advice regarding homestead status of real property or proceedings involving that status and services related to protected homestead.
  • involvement in fiduciary, employee, or attorney compensation disputes.
  • proceedings involving ancillary administration of assets not subject to administration in this state.

Ordinary vs Extraordinary Legal Services

Bottom line, the Florida Legislature has set up a schedule for everyone to follow regarding standard, ordinary, and expected work that a Florida probate lawyer will have to undertake in any probate matter in order to complete the probate process. If the estate goes outside that standard, general route with any number of unique (or extra-ordinary) situations, like a will contest or confusion over language of a will provision that needs judicial construction, or complications due to ongoing business activities, zoning issues, taxing matters, and the like, then the schedule does not apply.

In these extraordinary circumstances, the Florida probate lawyer will undertake specific legal work to meet those unique issues and challenges to the estate and the legal fees and expenses will be unique to that situation, controversy, or court fight.

If a Florida estate is valued in excess of $100,000, then there may well be extraordinary issues involved in probating that estate. It is wise to work with a Florida probate lawyer who will discuss fees and rates with the estate’s representative and who is amenable to fee arrangements that include flat fees, specific hourly rates, etc.

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