Our most common questions from prospective clients have to do with the cost of Florida probate. Most people understandably want to know how much probate will cost before they start the process. And if the estate is relatively small, knowing the cost of probate can help you decide whether it is worthwhile.
The biggest cost in a Florida probate proceeding are usually attorneys’ fees. Although there are other costs (such as filing fees, publication costs, or accounting fees), the bulk of probate expenses are attributable to the fee paid to the attorney who represents the personal representative(s) of the estate. And because Florida rules require a a probate attorney for most probate cases, attorney’s fees are usually an unavoidable part of the process.
In Florida, the attorney for a personal representative can receive “reasonable compensation payable from the estate assets.” In other words, the attorney is paid from the assets of the estate (assuming that there are sufficient assets to cover the attorney’s fees).
Attorney’s fees for Florida probate are agreed upon in the arrangement between the attorney and the personal representative. But since the amount paid to the attorney reduces the amount that the heirs or beneficiaries would otherwise receive, Florida law requires that the expenses to be “reasonable.” If the fees are unreasonable, the court has the authority to reduce the attorney’s fees.
What Are “Reasonable” Attorney’s Fees?
As with other areas of the law, the determination of “reasonableness” of attorney’s fees is inherently subjective. Two people can disagree about whether a fee is reasonable in a specific case.
The reasonableness of attorney’s fees is not usually an issue in court proceedings. The probate judges see enough cases that they know how much an estate should cost. If the proposed fees are disclosed to third parties and no objection is made, the fees will likely be approved.
But when the issue does arise, the clients, personal representatives, and judges need an objective standard to help them determine whether fees are reasonable. To provide clarity, the Florida probate code lists fees that are presumed to be reasonable in a given estate followed.
|
Compensable Value of Estate |
Attorney Compensation |
|
$40,000.00 or less |
$1,500 |
|
$40,000.01 to $70,000.00 |
$2,250 |
|
$70,000.01 to $100,000.00 |
$3,000 |
|
$100,000.01 to $1,000,000.00 |
$3,000; plus 3% on the value of estate from $100,000.01 to $1,000,000.00 |
|
$1,000,000.01 to $3,000,000.00 |
$3,000; plus 3% on the value of estate from $100,000.01 to $1,000,000.00; plus 2.5% on the value of the estate from $1,000,000.01 to $3,000,000.00 |
|
$3,000,000.01 to $5,000,000.00 |
$3,000; plus 3% on the value of estate from $100,000.01 to $1,000,000.00; plus 2.5% on the value of the estate from $1,000,000.01 to $3,000,000.00; plus 2% on the value of the estate from $3,000,000.01 to $5,000,000.00 |
|
$5,000,000.01 to $10,000,000.00 |
$3,000; plus 3% on the value of estate from $100,000.01 to $1,000,000.00; plus 2.5% on the value of the estate from $1,000,000.01 to $3,000,000.00; plus 2% on the value of the estate from $3,000,000.01 to $5,000,000.00; plus 1.5% on the value of the estate from $5,000,000.01 to $10,000,000.00 |
|
$10,000,000.01 or above |
$3,000; plus 3% on the value of estate from $100,000.01 to $1,000,000.00; plus 2.5% on the value of the estate from $1,000,000.01 to $3,000,000.00; plus 2% on the value of the estate from $3,000,000.01 to $5,000,000.00; plus 1.5% on the value of the estate from $5,000,000.01 to $10,000,000.00; plus 1% on the value of the estate above $10,000,000.00. |
The Florida probate code also provides that attorneys can be compensated for “any extraordinary service.” What constitutes an extraordinary service is case-specific, but can include will contests, audits, tax advice and returns, and dealing with real property.
Many Florida attorneys treat these guidelines as an absolute rule and set their fees accordingly. This can be unfair to the client. For example, the work required to probate an estate consisting of a $1 million bank account isn’t substantially more difficult than the work required to probate a $100,000 bank account. Under the guidelines, the attorney would receive $30,000 for the $1 million account and $3,000 for the $100,000 account.
This unfair result is not required by law. Keep in mind that the guidelines only establish what fees the court will presume to be reasonable. They do not require that the attorney be paid that amount.
To avoid the unfairness of a percentage-based fee structure, we use a flat fee system that is based on the work involved (instead of the value of the estate).