WILL CONTESTS, PROBATE LITIGATION, AND TRUST ACTIONS

Will contests, probate litigation, and lawsuits involving trusts are factually intensive and legally complex actions that require experienced and aggressive lawyers. The attorneys at Kurt E. Lee, PL, have represented personal representatives and trustees, heirs, interested parties, and beneficiaries in these emotionally charged actions. Kurt E. Lee has over 20 years of experience with these matters and understands the unique challenges associated with these actions.

Kurt E. Lee, PL, represents clients in disputes involving questions or will and trust interpretation, undue influence, incapacity, and other issues. 

A NOTE ON ATTORNEY’S FEES IN PROBATE AND TRUST LITIGATION MATTERS 

The first questions we hear from anyone having a probate or trust litigation matter are often, “What is your hourly rate?” and “How much will this cost?”

We believe that these questions are valid and important questions. It is, however, almost impossible for us to answer these questions with an accurate estimate at the beginning of a matter. We do not know enough about the facts and circumstances of the matter and there are simply too many contingencies at the early stage of a matter to render an accurate estimate.

It sometimes helps, therefore, to describe the different ways in which our firm might address fees in a probate or trust matter: (1) an hourly rate basis; (2) a contingency fee or mixed fee basis; or (3) a fixed fee basis.

Hourly Rate Basis

Lawyers usually work with clients on an hourly rate basis. A lawyer performs work while keeping tabs on the time necessary to perform such work, and the lawyer then charges the client a fee based upon the lawyer’s hourly rate multiplied by the time expended performing the work.

We often charge fees on this hourly rate basis when we defend personal representatives in actions brought by an interested party. An hourly rate basis works well in such circumstances because it ensures that estates only pay for the amount of fees they use and require for a matter.

The lawyers in our firm have different hourly rates and such rates reflect the differences of each attorney’s experience and training.

Generally speaking, probate disputes handled on an hourly rate basis require between $70,000 and $140,000 of attorneys’ fees. Generally speaking, probate disputes also require an additional $10,000 to $40,000 for costs (e.g., expert fees and court reporter fees).

Probate and trust litigation is expensive because most claims cannot even be initiated until the most important witness — the trust’s settlor or the will’s testator — has died. As a result, lawyers are forced to obtain testimony and documentary evidence from third parties such as relatives, doctors and care givers, neighbors, and friends who may have had contact with the decedent. Successful litigation of a probate or trust matter often involves a thorough, often time consuming, investigation of the facts and circumstances surrounding the procurement and execution of the disputed will or trust. 

Contingency Fee or Mixed Fee Basis

Given the anticipated expense of probate and trust litigation, some seek our services on a contingency fee or mixed fee basis.

If we accept a matter on a contingency fee basis, the firm and client mutually agree that we will receive a percentage of whatever amount is recovered, if anything, as the attorneys’ fees for the representation. In this regard, we usually agree upon a percentage between 30% and 45%.

Litigation costs are different from attorney’s fees. As part of a contingency fee agreement, we and the client will further agree at the onset of the matter who will pay the litigation costs (e.g., filing fees, deposition expenses, expert fees, etc.). We sometimes will advance certain litigation costs with the expectation that such costs will be paid from any recovery.

Obviously, a contingency fee agreement means that the greater the recovery the greater the attorneys’ fees. This result should not be unexpected given that our firm is taking a risk that, if there is a small recovery or no recovery, the firm will not be compensated for all of the time it has expended upon the matter.

Kurt E. Lee, PL, does not automatically accept contingency fee matters. Unlike most personal injury actions, it is often difficult to determine a defendant’s liability in a probate or trust action. In addition, probate and trust actions seldom produce recoveries without significant investigation and litigation.

As a result, our firm will sometimes “combine” types of fee arrangements. We will sometimes agree to a mixed fee arrangement whereby the firm works on a matter in exchange for reduced hourly fees coupled with a contingency fee agreement.

Flat Fee Basis

Our firm is sometimes willing to enter into a flat fee arrangement. A “flat fee” arrangement is exactly what it sounds like: we agree to perform certain services or to take certain actions in exchange for a specific and certain fee 

We do not often enter into flat fee arrangements in probate or trust litigation matters. Although a flat fee agreement gives clients certainty about their attorney’s fees, clients may be disappointed if their goals are not achieved within the structure of the agreed upon services.

Conclusion

The foregoing is an overview of the three primary ways we structure attorney fee agreements. The foregoing is not an exhaustive discussion of fee arrangements. The foregoing discussion also ignores the critically important role of case strategy in estimating attorney’s fees i.e., strategy decisions impact what attorney’s fees may or may not be incurred because they are decisions to take or not take certain actions in a matter.

Thus, if you have a probate or trust litigation matter, please call us and let’s initiate a conversation about our attorney’s fees. We are not afraid to discuss our fees, alternative fee arrangements, or our billing practices; indeed, we welcome such discussions because they help to avoid confusion and questions later.

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