In discussing costs, we only address the cost of probate litigation in California. That is because we practice here and are familiar with how attorneys charge for their services. The general ideas in this chapter may apply to other states but you should check with a local attorney if your case is outside California.
How to pay for probate litigation
The cost of probate litigation in California depends on two things.
- If you are an heir or beneficiary of a probate estate trying to get your rightful inheritance, or the executor or administrator
- If you are paying for litigation on an hourly basis or using a contingency fee.
If you are an heir or beneficiary seeking to get your rightful inheritance, then nearly any probate litigation attorney in California will be glad to represent you. You’ll typically pay using a traditional hourly fee arrangement. A smaller number of attorneys will agree to take on your case on a contingency fee basis.
We will dive into each of these cost structures in the next section.
If you are the executor or administrator then in most cases, the cost of probate litigation will be paid by the probate estate. Your lawyer will be paid an hourly rate that must be approved by the probate court judge.
The one important exception to this is when your goal as an executor or administrator is to get property back into the estate. In other words, if property was wrongfully taken from the deceased or the estate, and you want title or possession of that property, then you will have to litigate to get it back.
If the estate has few or no assets, then you will almost certainly need a probate litigation attorney who will take your case on a contingency fee. This is simply because of the risk the attorney takes representing an estate with no assets in it at the start of litigation.
How to pay for probate litigation: hourly attorney fees
Hourly fees in California probate litigation cases are just what you expect them to be. You pay the law firm for the time they put into the case and the various costs incurred in pursuing your case.
Attorneys are paid an hourly rate, or a range of rates if several attorneys are working on the case. Paralegals are paid at a lower hourly rate.
In addition, various out of pocket costs will be incurred. When you hire an attorney under an hourly agreement, there is no promise of any kind of outcome. What you are paying for is the time the law firm puts into your case.
There is no way in advance to know exactly the total cost under an hourly fee agreement. The range can be so wide that it can’t be estimated at the start of a case. It is impossible to know at the beginning of the case exactly how much time will go into your case and what the total out of pocket costs will be.
Understand that an estimate is just that, an estimate. If your case ends early then the money held in your attorney’s client trust account will be returned to you. If the money in the client trust account runs out, and your case is not finished, then expect to have to deposit more money in the client trust account.
Factors that influence hourly fees
When you hire an attorney on an hourly fee basis, you can expect to be asked for a retainer. A retainer is money that is deposited in the firm’s client trust account. The money sitting in this account can only be used for the work and costs for your case.
You should get a monthly invoice from the law firm, which will show you the hours spent on your case, who performed the work, what work they performed, and details for any costs related to your case. Costs include items such as filing fees, deposition transcripts, copies of documents, process service, etc.
There are any number of out of pocket costs that may be incurred for your case. Those costs will be itemized in your monthly invoice.
In an hourly fee retainer agreement, if your case ends and the initial retainer has not been entirely used, whatever is left gets returned to you. The flipside to this is if the firm has exhausted the amount you first deposited, then you must replenish funds into the client trust account to keep the firm working on the case. As much as you might not want to hear this: You may have to deposit more money multiple times depending on the amount of your retainer, amount of work performed, and out of pocket costs incurred.
How to pay for probate litigation: contingency fees
Under a contingency fee agreement, you will not pay anything unless and until that attorney has gotten you something of value in return. “Something of value” could be money, real estate, tangible items, etc.
It is unlikely that you will know everything of value owned by the trust at the start of the case. Whatever you win that has financial value then becomes the basis for whatever the payment will be under the contingency fee. Most firms will offer some form of a tiered contingency fee agreement.
At The Grossman Law Firm, we structure our agreement in the following way for the vast majority of our cases:
- 25 percent of whatever value is recovered if we’re able to resolve the case without having to file a petition in the probate court,
- One third of what’s recovered if the case settles at least 90 days before the first set trial date, and
- After that time, either because there’s a settlement close to trial or because there’s been a trial and there’s a judgment in your favor, then it’s 40 percent of what’s recovered.
- In addition, the firm is reimbursed for direct out-of-pocket costs associated with your case.
- If there is no recovery then you are not charged any fee nor are you responsible for reimbursing for costs
In addition to paying attorney’s fees, you’ll also be responsible for reimbursing for actual costs incurred. Typical probate litigation case expenses include court reporter fees, deposition transcripts, certified copies of certain official documents, regular copies of other types of documents, process service, and filing fees. If there are experts, then there are going to be expert witness fees.
When is the contingency fee method right for you?
So you might be thinking, “can I afford to get involved in probate litigation?” That’s going to depend on what you’re trying to achieve, what evidence you have readily available, how difficult the opposing party is going to be, and how difficult opposing counsel is going to be. The more that needs to be done in your case, on an hourly basis, the more it will cost you.
For many people, it’s a scary idea to go into a case not knowing the total cost and not knowing if they can afford the total cost. No one wants to start a lawsuit, run out of money in the middle, and lose their attorney.
A common way of solving this problem is hiring an attorney on a contingency fee basis. This way you don’t have to worry about running out of money. It’s important to note that both parties have to agree to a contingency fee.
This is because a contingency fee is a form of risk shifting. When you come to a law firm saying that you have a good case, and want them to represent you, you have to provide a way for them to get paid for their work. The firm must evaluate the relative strength of your case because of the risk they are taking. Most cases take somewhere between one and three years to ultimately conclude, whether that’s by some sort of negotiated settlement or by trial.
The firm knows they are going to be putting in a considerable amount of time and they are going to have to spend money out of their own pocket in order to pursue the case. If they are unsuccessful, i.e. if there is no recovery, then under a contingency fee, you do not pay the firm anything.
That means the risk has shifted to the firm. If things go badly, then the firm will pay for the entire case without getting anything in return. On the other side is the possibility that things go better than anybody would have anticipated at the beginning of the case. It may be that the case settles somewhat earlier than anyone would think.
How these arrangements apply to common types of probate litigation
The cost of suing an executor or administrator for breaching their fiduciary duty
The single most common type of litigation is suing an executor or administrator for a breach of their fiduciary duty. The most common types of breaches of fiduciary duty are: failing to account, mismanaging or wrongfully taking estate assets, or the executor or administrator performing needed tasks in a timely manner resulting in a delay distributing the assets to the heirs or beneficiaries.
The factors that will affect the total cost of your case are going to be: how difficult it is to prove the breach of fiduciary duty, how difficult the executor or administrator wants to be in this litigation, and the particular judge to which the case has been assigned. Some breaches are not that difficult to prove.
For example, if you are suing the executor or administrator because they failed to account, it’s really a very straightforward case. You will note the court’s register of actions showing the estate has been open for over a year. After that, you will state in your petition no account has been filed, and that is pretty much the entire case. If your case is in fact that straightforward, you are going to have relatively low costs.
On the other hand, your case may be much more complex. For example, if you’re challenging an account, or you are litigating over the need to make a distribution, then your costs can greatly increase. More witnesses need to be involved, more documents need to be obtained and examined, and the possibility of bringing in expert witnesses all drive up the cost. You could also run into a situation where the executor or administrator is difficult simply for the sake of being difficult. That’s also going to be more time and possibly cost more because of additional work that needs to be done.
Your particular judge is also a factor in the cost of your case as well. Some judges want to keep cases moving and monitor attorneys to make sure that happens. Other judges are not worried about cases going on for a long time even if there is no good reason.
Some judges have no problem setting trial dates while other judges will not set trial dates unless the parties have gone to mediation or they’ve engaged in some other kind of alternative dispute resolution. A judge like this simply will not give you a trial date without meeting these hard and fast rules, which means more time and more costs associated with a case.
The range for what these cases may cost really is very wide because of these factors. On an hourly basis, if your case is straightforward, you may finish the case for something less than $5,000. As the complexity and the difficulty increases, you will see a steep climb in cost.
Getting the case to trial may cost anywhere from a hundred to a hundred fifty thousand dollars. Of course, if you settle the case along the way, that’s going to reduce the actual cost.
If you’re the beneficiary and you have hired your attorney on a contingency fee basis, then you know in advance that your cost is going to be the percentage of what is actually recovered plus the direct out-of-pocket costs related to your case.
The cost of will contests
Will contests are only filed by potential beneficiaries and heirs; they are never filed by executors. If you filed the will contest, hiring a lawyer on an hourly basis is very common. There’s a much smaller number of lawyers who are willing to take on a will contest on a contingency fee basis. You can expect that any lawyer who’s considering a contingency fee is going to evaluate the facts of your case with you before agreeing to take it.
If you are the executor defending the will contest, then you’ll pay your probate litigation attorney on an hourly basis from the probate estate. Your lawyer will only be paid after petitioning the court to approve attorney’s fees and costs.
The factors that will increase the cost of your case are: how long your case goes on, the number of witnesses involved, and the number of records that need to be obtained and analyzed.
Will contests almost always start with the belief that the person who created the will either had some sort of mental incapacity or they were subject to undue influence. That nearly always means there will be a need for some number of depositions, financial and medical records that need to be obtained, and very commonly there’s a need for expert witnesses.
A will contest that goes to trial can easily have a cost of a hundred to one hundred fifty thousand dollars. If you have hired your attorney on a contingency fee basis, then you will pay a percentage of whatever you receive from the trust plus your out-of-pocket costs.
The cost of suing a third party as the beneficiary
A beneficiary suing a third party who took property from the probate estate is different from a breach of fiduciary duty case. This can be litigation against an executor or administrator, or someone else who took estate property, quite likely while the deceased was still alive.
A common scenario is the deceased transferring the title to real estate to somebody else while they were alive. After they have died, the claim states that the property really belongs to their estate. You can hire a lawyer on a regular hourly arrangement or you may find a lawyer willing to do it on a contingency fee.
If you are the executor or administrator, then there is a very strong likelihood you will pay your attorney at an hourly rate. The one important exception to this is if there are either no assets or very few assets in the estate. In those circumstances, the executor or administrator does not have the resources to hire a probate litigation lawyer on an hourly basis. In that circumstance, you’ll almost certainly need to hire a lawyer on a contingency fee basis.
The factors that determine the cost of a case like this are similar to what you see in a will contest. The interesting part of this is that a person who has taken property is really incentivized to litigate the case. That’s because unlike a will content where there’s an open question about who’s going to inherit, when a third party has already taken something, they now have title or they have physical possession. They will not want to give up possession, control, or title.
Not everyone in that situation is necessarily irrational, but it is very common for people like that to dig in. If your case goes to trial against the third party, it would be unsurprising if the total cost of the case is anywhere between seventy-five thousand and one hundred fifty thousand dollars on an hourly basis.
If you hired your attorney on a contingency fee agreement, then again it is going to be a percentage depending upon how far you’ve gone into the case plus the direct out-of-pocket costs associated with your case.