Probate Litigation Attorney Fees

Options Include Contingency or Hourly Basis

Unlike many other law firms, our San Francisco probate litigation attorneys at the Triay Law Office offer retainer agreements on either a contingency or an hourly basis, depending on the case and the client’s desires.

Why is Probate Litigation So Expensive?

A typical litigation matter will take between $75,000 and $150,000 of attorney fees on an hourly basis, and an additional $30,000 to $75,000 for costs. In a contingency agreement, the most common arrangement is for the attorney to receive 33 percent of the recovery if the case settles, or 40 percent if the case proceeds to trial.

Why is probate litigation so expensive and why are probate litigation attorney fees so high? In contested probate litigation practice, the interested party must prove what was said, what was thought, and what was intended by various people, in order to prove the testator’s state of mind. The most important person in probate litigation is deceased and cannot speak for himself. Gathering this type of evidence requires interviews, depositions and record subpoenas from doctors, lawyers, family members, care providers, neighbors, friends, accountants and anyone else who had contact with the deceased. This is a very time consuming and expensive process. However, there is often a great deal of money and property at stake.

Triay Law Office Accepts Fees on a Contingency or Hourly Fees

For an hourly fee arrangement, the client will pay the law firm monthly based on the amount of time spent on a case by the attorney, plus out-of-pocket costs. The attorney’s hourly rate is $450/hour, and you pay the attorney no matter the outcome of the case. If the client loses the case, the attorney fees are not refundable.

For a contingency arrangement, the standard fees are 33 percent of recovery if the case settles, and 40 percent if the case proceeds to trial. The percentages will vary depending on the size and difficulty of the case, and whether the attorney advances money for subpoenas, deposition transcripts, expert witness fees and other costs. The Triay Law Office often advances costs when retained on a contingency basis.

There are some situations where a person can use disputed estate assets to pay probate litigation attorney fees and not have to reimburse the estate if the case is lost. However, those situations are rare. Under California law, it is rarely possible to collect attorney fees from the other side.

Most clients cannot afford to finance a case on an hourly fee basis, while others choose a contingency arrangement to avoid spending money on what may turn out to be a losing case. For those reasons, the Triay Law Office handles about 75 percent of its cases on a contingency fee basis.

Contingency fees have advantages and disadvantages for the client. The advantages are that the client does not have to pay any money out of pocket over the course of the litigation and risk an unfavorable outcome after spending a large sum. The disadvantage is that if there is a large settlement or a win at trial, the attorney fees will often be much larger than an hourly fee would have been.

Example of Contingency vs. Hourly Fee Arrangement

For example, let us assume the assets at stake in a case regarding a trust written as a result of undue influence are worth $800,000. The attorney works on the case over a one-year period and puts in a total of 200 hours and spent $30,000 on costs. The case settles just before trial, and other side agrees to pay the client $500,000. If the case had been handled on an hourly basis, the client would have paid $80,000 in attorney fees and $30,000 in costs for a total of $110,000. After receiving $500,000, the client would have a net recovery of $390,000. If the case was handled on a contingency basis, the attorney would first be reimbursed the $30,000 advanced costs leaving $470,000. The attorney would then get a fee equal to 33% of $470,000, which is $155,100. The client would receive a net of $314,900, or $75,100 less than their net would have been on an hourly fee arrangement.

On a contingency basis, the attorney often works for more than a year with no income from that case while advancing the case costs. The law firm takes the risk that it might receive nothing if the case loses at trial. To make up for the delayed payment and the risk of no payment, the contingency fee, when received, has to be much higher than the hourly fee would have been. Otherwise, our law firm would just refuse to accept contingency cases and work only on an hourly fee basis. All fee agreements must be in writing.

Contact our probate litigation lawyers to review your case and the potential fee arrangement that would best suit your situation.