February 8, 2021
In Alberta, probate is the court processes that prove the validity of a will and provides the power and control to the executor (also known as a personal representative) to act on the instructions left in the will. To apply for probate of an estate, the individual seeking to be the executor must submit an application to the court. The application contains details of the will and the estate and notifications to beneficiaries and other interested individuals. Upon a successful granting of probate, the will is confirmed by the courts as the last valid will of the deceased. Probate lawyers assist clients in drafting and executing this application. We recently wrote on what a probate lawyer is and whether your estate circumstances are such that you would benefit from hiring one. Find that post here.
Costs of an Alberta Probate Lawyer
This next question is – what will hiring a probate lawyer cost me, or more accurately, cost the estate? In most cases, the estate covers the cost of professional services incurred in its administration.
In Alberta this area of law can be fairly comparable as far as fees charged between firms. This is because in 1995 the Surrogate Rules Committee published a Suggested Fee Guideline which is still used by many lawyers as a guide for fees rendered in estate administration services. Importantly, the Fee Guidelines are not a tariff, so parties are free to negotiate a fee structure if they want. Of course, lawyers and law firms have their own billing fee structures and how costs for services rendered are calculated are a matter of contract between you (the client) and the lawyer.
Before we review the Fee Guidelines, it is important to understand that legal services rendered in the administration of an estate can typically be divided into two categories, “core legal services” and “non-core legal services”. The types of services included in core and non-core legal services are set out in the Surrogate Rules but in general terms, core legal services are those rendered in a non-contentious estate and deal mainly with the administration of the estate whereas non-core legal services are typically rendered when an estate becomes contentious and the executor additionally requires representation in court proceedings relating to the estate. Examples of a contentious estate are those where there are applications in court to challenge the distribution of an estate or the circumstances of signing the will.
Fee Guidelines for Probate Lawyers
The Fee Guidelines suggest that where services provided by the lawyer are limited to core legal services the fees should be guided by the following calculations:
|Gross value up to $150,000
|$2,250.00 plus 0.5% of the gross value of the estate
|Gross value over $150,000
|$2,250.00 plus 1% of the gross value of the estate.
For example, an estate valued at $500,000 with no disputes about how it will be administered could expect legal fees in the amount of $7,250. Alternatively, an estate worth less, but with disputes about how administration will be conducted could expect significantly higher legal fees.
Typically, where non-core legal services are also provided, those services are charged through an hourly fee rate structure. This means that however much they cost will depend on the hourly rate of the lawyer performing the services. Of course, reasonable costs incurred by the lawyer as disbursements will be in addition to these fees. For instance, fees associated with court filing.
Hiring a Probate Lawyer
Before you hire a lawyer to assist with the administration of an estate, you should review the lawyer’s retainer agreement which should set out how the lawyer will charge for their services. These documents can be complicated, so ask questions if you do not understand. You may also want to ask the lawyer how their fee structure applies to the unique circumstances of the estate you are administering. This should give you a better idea of what services you will need the lawyer to assist with and how those fit into the categories of “core legal services” and “non-core legal services” and consequently the overall cost for the legal services.
If you have questions about the probate process or estate administration more generally, please contact Carbert Waite’s estate lawyers.