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Who pays the probate attorney? Shouldn't the Personal Representative pay this person?

West Palm Beach, FL |

My brother is PR. He wants all heirs to pay the probate attorney (from proceeds of the homestead sale). He wants me to sign to this. The attorney represents the PR, so doesn't he pay their legal fees? He's getting a good salary. Why should I pay an attorney who doesn't represent me? My brother says the will allows for the estate to pay the attorney.... BUT, there are no liquid assets in the estate. There is only money in the homestead, but it is has passed outside probate. It is not subject to attorney or PR fees or creditors' claims.

So, who should pay the probate attorney? Shouldn't the PR, since they represent him? And for that matter, who should pay the PR? It seems like I am not obliged to.

PS He wants it in writing, agreeing to pay a portion of PR and attorney fees.

Attorney Answers 7


  1. Best answer

    It's a crazy thing about Florida law, homestead passes outside of probate, but you have to hire a probate attorney to get title to it. Since homestead is not liquid I require a client (the PR) pay me up front to probate the estate. Your brother is suggesting you pay a proportionate share of the fee as you are deriving benefit from the probate process. It sounds fair to me, although since your brother has more money he could afford to pay for everyone. Consider hiring your own attorney before signing paperwork.

    The contents of this answer should be considered friendly advice, not legal advice and the answer should not be construed to constitute an attorney-client relationship. If you'd like actual legal advice, call me at 954-567-4100. Also, if you liked this answer did, be sure to click the thumbs-up button


  2. The attorney is paid by the estate. It comes off the top of the estate, before distributions to the beneficiaries. The attorney fee is an administrative expense of the estate even though the attorney represents the PR. I know that is not what you want to hear, but it is the law.

    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!


  3. You are correct, 733.6171(1) of the Florida Statutes: Attorneys for personal representatives shall be entitled to reasonable compensation payable from the estate assets without court order.

    If I were you, I would not sign any paperwork if you believe that your interests are not best served by signing them. I recommend you retain your own probate attorney to represent your interests and review the documents that your brother wants you to sign.

    Best of luck.

    DISCLAIMER This answer is not legal advice nor does it create an attorney-client relationship between any user/reader and The Law Offices of Jimmy Allen Davis, P.L.. We encourage and welcome you to contact us about your legal problems and visit our website at www.lawofficesofjimmyallendavis.com or email me at jimmy.davis.esq@gmail.com.


  4. If it weren't for the probate attorney, the homestead property would not have been able to be retitled in the heirs' names. Like the first attorney said, even though homestead property passes outside of probate, you have to do a probate administration to have the property determined to be homestead so that it will pass outside of the probate.
    It would only seem fair that the heirs split the fees and costs of the probate attorney who provided services to make this happen.
    As for a PR fee for your brother, if he was never actually appointed as PR (i.e. if it was a summary administration type probate), then he would not be entitled to a fee. If he was appointed as PR, then the Florida Statutes outline what is reasonable compensation for the PR's services.


  5. Your question raises a troublesome point about probate law. The lawyer for the personal representative gets to bill the estate for their services, yet the lawyer for the personal representative is just that and if there is a conflict between the lawyer for the personal representative and another heir, the attorney getting paid by the estate ends up being the attorney for just one of the heirs. What I have just written is subject to a lot of qualifications too complicated to discuss here, but it is basically true that in any conflict between the personal representative and another heir the personal representative has this advantage.


  6. The fee for the probate attorney will need to be paid from the estate as others have said. If the homestead property is the only asset in the estate and you're not selling it, then it is not unreasonable for the heirs to divide up the probate attorney fee.

    This does not constitute legal advice, and there is no attorney/client relationship established.


  7. I agree-the fee is paid from the estate.

    The answer given does not imply that an attorney-client relationship has been established and your best course of action is to have legal representation in this matter.

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