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Settling a Probate on Estate..does the lawyer get a percent in NYS on property willed to siblings or just the personal assets?

Bayshore, NY |

In NYS signing a retainer on percentage for probate..is the home that was willed to siblings part of the estate asset that the attorney gets a percent of? if so..how is it determine? by a bank appraisal...if not..just the personal assets are evaluated in the percentage? Thank you.

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Posted

For this very reason, I am opposed to signing a retainer on a percentage basis. If the deed to decedent's home is in the decedent's name, then it is considered a probate asset. If it passes by jtwrs, then it is not a probate asset. Either way, paying on a percentage costs more for you becuase the work to transfer the deed is minimal (and definitely much less than a percentage) and it is the same work that must be done either way. If you ever have to go through this again, I strongly suggest that you do not pay by percentage. The work is the same on a multi-million estate or a bankrupt estate. Evaluate the assets you have to deal with BEFORE signing the retainer.

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Posted

The percentage would apply to whatever assets are part of the probate estate, as Ms. Seigel indicated. It is not clear from your summary whether that would include the home or not. My guess is that it would. If the property passed outside of probate, by way of a deed, then it would not be included in the estate and the lawyer's fees would only be calculated based on the personal property.

James Frederick

***Please be sure to mark if you find the answer "helpful" or a "best" answer. Thank you! I hope this helps. ***************************************** LEGAL DISCLAIMER I am licensed to practice law in the State of Michigan and have offices in Wayne and Ingham Counties. My practice is focused in the areas of estate planning and probate administration. I am ethically required to state that the above answer does not create an attorney/client relationship. These responses should be considered general legal education and are intended to provide general information about the question asked. Frequently, the question does not include important facts that, if known, could significantly change the answer. Information provided on this site should not be used as a substitute for competent legal advice from a licensed attorney that practices in your state. The law changes frequently and varies from state to state. If I refer to your state's laws, you should not rely on what I say; I just did a quick Internet search and found something that looked relevant that I hoped you would find helpful. You should verify and confirm any information provided with an attorney licensed in your state. I hope you our answer helpful!

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Posted

It can be set by bank appraisal or fair market value. If you believe the house has a high value, you are better off signing an hourly retainer than percentage. My firm normally only does probate by the hour. In most cases, it is fairer to the client.

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