Ask the Expert: Lawyer shouldn't get entitlement

My aunt died in May. In the two years before her death, she had made gifts to her 10 nieces and nephews, adding up to $180,000. The lawyer who probated her will says he's entitled to 3.75 percent of her estate, including these gifts. Were they part of her estate? And is he entitled to a percentage of gifts he had nothing to do with?

An estate lawyer's fee is purely a matter of negotiation, not a legal entitlement. You should seek the assistance of Surrogate's Court, which oversees the probate of wills and administration of estates.

It's been decades since New York had a recommended fee schedule based on a percentage of the estate, says John M. Czygier Jr., acting Supreme Court justice in the Suffolk County Surrogate's Court. Attorneys' charges today include hourly fees, flat fees, percentages and combinations of all three. When the fee is a percentage, the assets to be included are also subject to negotiation. But if your aunt's gifts were valid, he says, they weren't part of her estate and shouldn't generate any charges.

When you hire a lawyer, you get a letter stating the services to be provided and fees to be charged. But even after signing such an agreement, any executor or heir who thinks the estate is being overcharged can ask the court to set a reasonable fee. "It's called 2110 procedure," says Czygier. The judge decides the fee based on the time, complexity and dollars involved, and the results achieved. He relies on his own legal experience, too. "If a lawyer says it took 20 hours to complete a probate form, I ask if it takes him two hours to change a pillowcase," says Czygier.

The bottom line: The probate court has the authority to set an estate lawyer's fee.

Websites with more info:

bit.ly/btdtiE and bit.ly/axzCv7