Probate can be expensive

The probate process is not only lengthy, but also all too often very costly. In addition to filing fees and publication costs, other expenses include personal representative’s fees, attorney’s fees, miscellaneous incidentals, and even a bond at times.

Court filing fees vary by jurisdiction and are often determined by the size of the estate and, sometimes, by the complexity of the case. Typically, court filing fees are at least several hundred dollars.

Publication expenses in probate result from the requirement to publish various notices, such as notices of any hearings as well as a notice to creditors. Typically, the publication has to occur on three dates before the hearing. The publication must be made in a newspaper published in the county where the probate is pending, but if there is not such a newspaper, then in one having general circulation in that county. The costs are determined by the newspaper.

Personal representative fees are in essence a payment for their time while administering the estate. The fees are determined by statute, although a different payment method can be set in a will and in that case, such fee schedule determined in a will takes precedent. The formula prescribed by statute to calculate Nevada’s personal representative fees is relatively simple: 4 percent of the first $15,000, then 3 percent of the next $85,000 (up to $100,000 total), and then 2 percent for all amounts above $100,000. If there are several personal representatives, the fee will be divided among them by the court according to the services actually performed by each of them.

The court may allow additional personal representative fees that are just and reasonable if the fees authorized by the statute are not sufficient to reasonably compensate the personal representative. Furthermore, the personal representative may seek extraordinary fees under certain circumstances. The court may find that preparing property for sale, prosecuting or defending litigation, handling estate taxes, carrying on of the decedent’s business, or some other necessary special services may justify extraordinary fees. In those situations, the personal representative should keep detailed records of work performed and time committed in order to allow the court to determine just and reasonable extraordinary fees. 

The attorneys in a probate proceeding can either charge by the hour, a flat fee, or can charge based on the percentage of the total value of the estate. While the hourly rate and flat fee are determined by each attorney, the percentage allowed to be charged as attorney’s fees for probate is determined by statute. The statute allows the attorney to charge 4 percent of the total value of the estate from $0-$100,000, then 3 percent from $100,000.01-$200,000, then 2 percent from $200,000.01-$1,000,000, and then 1 percent from $1,000,000.01-$25,000,000. The attorney and client must agree on the type of fee charged in advance and in writing. However, the payment is usually made at the end of the probate process. The court may allow additional attorney’s fees that are just and reasonable for extraordinary services under certain circumstances.

If an attorney also serves as the personal representative, the attorney cannot collect both attorney’s fees and personal representative’s fees and has to choose one of them, unless it is otherwise approved by the court.  Additional expenses incurred during a probate proceeding may include a bond, appraisal fee, accounting and tax preparation fees, or even costs of storing, upkeeping, or selling property.

Lastly, if the public administrator serves as the personal representative, the office will generally charge the statutory administrator’s fees.

A trust can help to reduce the overall fees of a full probate.

Natalia Vander Laan is a Minden attorney.