An executor for a family estate in Queens recently called me. He was holding his father’s will and a stack of bank statements totaling just over a million dollars. His first question wasn’t about the probate process or dealing with his siblings. It was, “Are your fees going to eat up this entire inheritance?” It’s the most common and most prudent question an executor can ask. The stewardship of a legacy begins with understanding the costs involved.
Clients are often confused about the structure of legal fees in a probate matter. They hear about percentages, hourly rates, and flat fees, but the context is often missing. In my practice, I have found that clarity on this topic is the foundation of a good relationship between an executor and their counsel. The cost should not be a surprise.
Executor Commissions vs. Attorney Fees
First, we must distinguish between two different costs: the executor’s commission and the attorney’s fee. They are not the same.
An executor is the person named in the will to administer the estate. For this significant work—a fiduciary duty that involves gathering assets, paying the decedent’s final bills, and distributing property to the heirs—the executor is entitled to a commission. This commission is set by New York law. Under SCPA § 2307, it is calculated on a sliding scale: 5% on the first $100,000, 4% on the next $200,000, 3% on the next $700,000, and so on.
The attorney’s fee is separate. This is the payment to the law firm hired by the executor to guide them through the Surrogate’s Court process. The attorney prepares the probate petition, corresponds with beneficiaries, addresses creditor claims, and provides legal counsel on any disputes that arise. While an executor can legally act without an attorney, it is almost always ill-advised. The procedural requirements are exacting, and a misstep can create personal liability for the executor.
The Standard of “Reasonable” Compensation
Unlike executor commissions, there is no statutory fee schedule for an attorney in a New York probate proceeding. Instead, the law requires that an attorney’s fee be “reasonable.”
The Surrogate’s Court has the authority to review and approve legal fees. Under Surrogate’s Court Procedure Act (SCPA) § 2110, the court can be asked to fix and determine the compensation for an attorney. When doing so, a judge will consider several factors:
- The size of the estate.
- The complexity of the legal issues.
- The time the attorney spent on the matter.
- The professional standing and experience of the attorney.
- The results achieved for the estate and its beneficiaries.
At our firm, we outline our fee structure in a written engagement letter before any work begins. For a straightforward estate administration, some attorneys charge a fee based on a percentage of the estate’s value, often mirroring the executor’s commission schedule. This approach works well when the workload is predictable. For more complex situations, however, this model does not fit.
When an Hourly Rate is Necessary
A percentage-based or flat fee is appropriate for routine probate. But many estates are not routine. An hourly billing arrangement is often more equitable for both the client and the attorney when we anticipate significant or unpredictable work.
Consider these situations:
- Will Contests: If a disgruntled heir challenges the validity of the will, the executor’s attorney must defend it. This process can involve discovery, depositions, and motion practice—work that is impossible to estimate at the outset.
- Complex Assets: An estate holding a family-owned business, commercial real estate, or unusual intellectual property requires specialized legal and valuation work far beyond a simple accounting of bank accounts.
- Tax Issues: If the estate is large enough to trigger federal or New York estate taxes, the attorney’s role expands to include preparing complex tax returns and potentially defending them under audit.
- Difficult Beneficiaries: When beneficiaries are in high conflict, the executor’s attorney often spends considerable time managing communications and mediating disputes to keep the administration moving forward.
In these cases, charging by the hour ensures the estate only pays for the work actually performed. We provide detailed, regular invoices so the executor can track the work and the associated costs, maintaining full transparency.
The goal is to align the fee with the value and work required. The role of an executor is one of immense trust and responsibility. An attorney’s fee structure must be clear and fair to honor that duty.
If you have been named as an executor in a will, the prudent first step is to create a preliminary inventory of the decedent’s assets and liabilities. With that document in hand, you can schedule a consultation with our firm to review the estate’s potential complexities and establish a clear projection of the legal work—and the fees—required to honor the legacy left in your care.
