If an Attorney charges on a percentage basis to settle an Estate, should the cost of life insurance and/or other accounts settled outside of probate be factored into that % charge?
It would depend upon the agreement you made. There should be a retainer agreement which refers to this issue. Typically this type of asset would be excluded from a percentage agreement, becuase the beneficiary may not be a party to the agreement.
Estate Planning Attorney
If in your state it is common practice to charge a percentage of the estate to settle a probate (in some states it is hourly work, some it is a "reasonable fee" which can include some percentage of the estate, and in some states the fees are set by statute (which often calculate the fees as a percentage of the estate being probated).
You will have to see if there is a different rule in your jurisdiction, but normally anything that passes outside of the probate system such as payable on death accounts or assets that have a designated beneficiary such as retirement accounts and life insurance will not pass through the probate (so long as the designated beneficiary has not predeceased the decedent), and therefore those assets should not be calculated in the fees for the probate.
If the attorney helps you fill out the claim forms for the insurance company or some kind of related service, then that would generally fall under a different engagement and you should discuss that separately with your attorney.
Good luck with your case.
With all due respect to the prior attorneys, the rules in PA are not as they state. Under the Johnson case, a percentage can be charged for assets outside the probate estate. However, it is usually a very low percentage.
It should be pointed out that the current trend in PA in my experience is experienced probate attorneys charge on an hourly basis. Do not hesitate to call if you have questions.
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