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Q: I need an attorney to see my mother’s estate through probate, but I’m not sure if I can afford one. Is there an easy way to figure out the average cost of an attorney before meeting for a consultation with each potential candidate? I guess I’m wondering if they can give this information on their websites or over the phone.
A: Attorneys’ fees will vary depending on several factors, including the type of case, the jurisdiction or geographical region in which it is based (those in cities may charge more than those in rural areas), and the experience or prestige of the firm or the attorney. Attorneys’ fees cover the legal services that are performed by attorneys on behalf of their clients, and usually a discussion of costs is reserved for the initial consultation. In the consultation, an attorney will get the necessary details of your case to determine a) if she will agree to represent you, and b) approximately how much time and money your case will require.
An attorney's fees may be an hourly, flat (for a particular “bundle” of services, like handling an eviction for $5,000) or contingent fee (a percentage of the client's recovery, e.g. 33% in a tort case). Generally, the attorney's fees are set at the discretion of the attorney himself or negotiated with the client, but in certain types of cases fees are determined by statute or a court. Many people also have their attorneys on retainer, having paid a certain amount as a down payment for future services. In a lawsuit, it’s possible to recover attorneys’ fees from the opposing party in the event that you win your case, which means that the amount you owe your attorney will be added to what you asked for in damages. Some contracts also include a provision that states the loser of a lawsuit between the parties to the contract will pay the winner's attorney fees.
For probate cases in California, the legislature has set maximum statutory fees that attorneys can charge to probate an estate, although a court can order a higher fee if the case was particularly complex. California Probate Code Section 10810 lists the fee awards at: four percent of the first $100,000 of the estate; three percent of the next $100,000; two percent of the next $800,000; one percent of the next $9,000,000; and one-half percent of the next $15,000,000. For estates larger than $25,000,000, the court will determine attorneys’ fees. The value of the estate is determined, in general, by the inventory for the estate. For further information, please read Division 6, Part 7 of the Probate Code “Compensation of Personal Representative and Attorney for the Personal Representative.”
Many people choose to handle a probate case themselves, and in cases in which the estate value is $150,000 or less, probate may not be required. To read more information on how to do probate an estate without an attorney, I recommend reading “How to Probate an Estate in California” published by Nolo Press. For advice on how to choose an attorney, you can read our earlier column from September 2010, “How to Find a Lawyer.”
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