I recently spoke with a man named as executor for his aunt’s estate in Brooklyn. He had just received the first invoice from the estate’s attorney and was taken aback. “I thought this was supposed to be a percentage,” he said, “not an hourly rate.” His confusion is common. When you’re grieving and suddenly responsible for stewarding a family’s legacy, the last thing you need is a surprise about the costs involved.
Unlike some states with rigid, statutory fee schedules, New York operates on a standard of “reasonable compensation.” This gives families and fiduciaries flexibility, but it can also create uncertainty. Understanding how probate attorneys structure their fees is the first step for any executor taking on this critical role.
The “Reasonable” Standard in Surrogate’s Court
The core principle governing attorney compensation in estate matters is found in the Surrogate’s Court Procedure Act. Specifically, SCPA § 2110 grants the court the authority to review and approve an attorney’s fee. An executor can ask the court to fix the fee, a beneficiary can object to a fee they believe is excessive, and an attorney can petition the court if they haven’t been paid.
This means every fee must ultimately be justifiable to a judge. But what does the court consider “reasonable”? Over the years, case law has established a set of factors that are weighed, including:
- The time and labor required.
- The difficulty of the legal questions involved.
- The level of skill needed to perform the services properly.
- The size of the estate.
- The results obtained for the estate and its beneficiaries.
An attorney’s fee for a simple $500,000 estate with a clear will and cooperative heirs will—and should—be vastly different from the fee for a $5 million estate involving a family business, real estate in multiple counties, and a looming will contest. The court’s oversight protects the estate, ensuring fees align with the work performed.
Common Fee Structures for Probate
While the court has the final say on reasonableness, most fee arrangements are agreed upon between the executor and the law firm at the outset. In my practice, we see a few common structures, and the right one depends entirely on the nature of the estate.
Hourly Billing
The law firm bills for the actual time its attorneys and paralegals spend on the estate’s administration. We often use this approach when the scope of work is unpredictable. For example, if we anticipate a will contest, a difficult asset search, or disagreements among beneficiaries, it is nearly impossible to quote a flat fee. Hourly billing ensures the estate only pays for the work that is actually performed. A prudent executor will request regular, detailed invoices to track progress and costs.
Flat Fees
For straightforward, uncontested estates, a flat fee can be ideal. This works well when the assets are known and easy to value—a house, a few bank accounts, and a brokerage account. The executor knows the total legal cost from day one, which simplifies budgeting for the estate. At our firm, we can offer this when we have a high degree of confidence that no significant complications will arise during the administration.
Percentage-Based Fees
This is what the executor I mentioned was expecting. It is common for attorneys to charge a fee based on a percentage of the gross taxable estate. This percentage is often on a sliding scale, perhaps 3-5% on the first million, and a smaller percentage on subsequent amounts. This is a guideline—a common practice—not a rule set by New York law. A 4% fee on a $1 million estate composed of a single brokerage account might be deemed unreasonable by the Surrogate’s Court, while the same percentage on an estate with complex assets and debts might be perfectly acceptable.
What Does a Probate Fee Actually Pay For?
An executor is the fiduciary responsible for managing the estate, but the attorney is the one who handles the legal process. The fee isn’t just for filling out forms; it covers the significant work of guiding an estate from start to finish. Stewardship.
A probate attorney’s work typically includes:
- Preparing and filing the probate petition with the Surrogate’s Court.
- Formally notifying all heirs and interested parties as required by law.
- Assisting the executor in identifying and gathering—or marshalling—all estate assets.
- Advising on the valuation of assets like real estate, businesses, or collectibles.
- Settling the estate’s financial obligations, including paying the decedent’s final bills and taxes.
- Preparing the final accounting that shows all money that came in and went out.
- Distributing the remaining assets to the beneficiaries according to the will.
This process can take nine months or, for a complex Manhattan estate with federal tax implications, well over a year. The attorney’s role is to ensure every step is done correctly, protecting the executor from personal liability and fulfilling the decedent’s final wishes.
If you have been named an executor and are preparing to open an estate, the first step is to get organized. Before you can have a meaningful conversation about fees, you need a clear picture of the assets and liabilities involved. We offer a complimentary executor’s checklist to help you begin this crucial inventory process.
