Attorney’s fees paid from an estate are not fixed by the lawyer, the executor, or the retainer between them. They are fixed by the Surrogate’s Court. SCPA 2110 gives the court the power to fix and determine the compensation of an attorney for services to a fiduciary or to the estate, on the application of the attorney, the fiduciary, or any person interested, and to direct the refund of any amount already paid that exceeds what the court allows. Whatever the retainer says and whether or not the fee has been paid, the court decides what was reasonable, and the difference goes back to the estate.
This page explains who may apply, when, what the court looks at, what the lawyer has to submit, what a retainer agreement is worth, how refunds work, when an objectant’s own lawyer can be paid from the estate, and what fiduciaries and beneficiaries should do about legal fees before the accounting. It is part of our section on trust and estate accountings.
Who May Apply, and When
The attorney
A lawyer whose fee the fiduciary will not pay, or who wants the fee approved before the estate is distributed, petitions to have it fixed. The court’s order then binds the fiduciary and the beneficiaries.
The fiduciary
An executor or trustee who thinks the bill is too high, or who wants the protection of a court-fixed fee before paying it, applies. A fiduciary who pays an excessive fee without court approval can be surcharged for the excess on the accounting, so the application protects the fiduciary as much as the estate.
A beneficiary or other interested person
Anyone whose share is reduced by the fee may apply: a residuary beneficiary, an heir in an administration, a creditor of an insolvent estate. The fiduciary’s consent is not needed.
The application can be made at any time during the administration as a separate proceeding, or the fee can be raised in the accounting. Most fees are reviewed at the accounting, where the fee appears on Schedule C and the petition asks the court to fix it, and where a beneficiary who objects to it files objections under SCPA 2209 like any other objection. The court also reviews the fee on its own, whether or not anyone objects, because the estate’s money is under its supervision. A separate petition makes sense when the accounting is years away and the fee has already been paid, or when a lawyer needs to be paid and the fiduciary will not agree.
Timing has one hard edge. Once a decree settling the account is entered and the fee was disclosed and passed on, the decree is final as to that fee. Objections to a fee have to be made before the decree.
The Court’s Factors
The statute says the court fixes the compensation; the factors come from decades of decisions and are the same in every Surrogate’s Court.
| Factor | What the court asks |
|---|---|
| Time and labor | The hours actually and reasonably spent. This is the starting point, and a lawyer without time records starts at a disadvantage. |
| Difficulty | An uncontested probate with three bank accounts is not a will contest, a kinship proceeding, or an estate tax audit. Routine work commands routine fees. |
| Skill required, and the lawyer’s experience and reputation | An experienced estate practitioner may charge more per hour and is expected to need fewer hours. |
| The size of the estate and the amount involved | A fee is measured against the estate it came from. A fee that is reasonable in absolute terms may still be too large a fraction of a small estate. |
| Results | A will sustained against a contest, a tax saved, an asset recovered. |
| Customary fees | What similar work is customarily charged in the county. |
| Responsibility | What was at stake and who bore the risk. |
Two rules follow from the factors. There is no standard percentage fee for estate work in New York; a fee set as a percentage of the estate is reviewed like any other and reduced when it does not match the work. And a lawyer is paid for legal work, not for the executor’s work. Paying bills, cleaning out an apartment, dealing with the bank, and arranging a sale are what the executor’s commission under SCPA 2307 pays for, and a lawyer who did them is not paid a lawyer’s rate for them. Where the lawyer is also the executor, the two roles are kept separate: commissions for one, fees for the other, and no double recovery. An attorney-drafter named as executor also owes the written disclosure required by SCPA 2307-a, or takes half commissions.
The Affidavit of Legal Services
The court’s rules require every lawyer whose fee is to be fixed to file an affidavit of legal services. It sets out the services rendered, the time spent on each, who did the work and at what rate, the amounts already received and from whom, and the terms of any retainer. Contemporaneous time records are attached or summarized. The affidavit is the lawyer’s proof, and the burden of proving that the fee is reasonable is the lawyer’s, not the objectant’s. An affidavit that reconstructs time from memory, or that lumps months of work into a single entry, is discounted accordingly. Time spent by the lawyer defending their own fee is generally not paid by the estate.
Retainer Agreements and Their Limits
The executor signs a retainer with the estate’s lawyer, and the retainer sets an hourly rate, a flat fee, or occasionally a percentage. The retainer is evidence of what the parties expected, and a fee within its terms will usually be approved when the work supports it. But the retainer binds the executor, not the beneficiaries, who did not sign it, and it does not bind the court. The question is always whether the fee is reasonable for the services actually rendered. A fiduciary may pay the lawyer on account during the administration under a written agreement, and most lawyers are paid that way rather than at the end; every such payment is provisional and is reviewed at the accounting. If the court fixes a lower fee, the excess is refunded.
The same applies to consents. A beneficiary who signed a receipt and release after full disclosure of the fee may be bound as to their own share, but the court can still review the fee on its own, and a release obtained without disclosing the amount or the basis of the fee is vulnerable. See receipts and releases.
Refunds, and Who Bears the Fee
When the court fixes a fee below what was paid, the decree directs the lawyer to refund the difference to the estate, and the direction is enforceable like any other decree. Where the fiduciary paid the fee without authority and the lawyer cannot or will not refund, the fiduciary can be surcharged for the excess on the accounting. Interest may be added from the date of the overpayment.
The court also decides which share of the estate bears a fee. The general rule is that the estate as a whole pays the fees of its administration. But where one beneficiary’s conduct generated the legal work, objections without merit, a will contest that failed, a refusal to sign anything, the court may charge the resulting fees against that beneficiary’s share rather than spreading them across everyone. A beneficiary weighing objections should know that losing them can cost more than the lawyer’s own bill.
The Objectant’s Lawyer, Paid from the Estate
A beneficiary who objects to an accounting normally pays their own lawyer. The exception is where the objections benefited the estate as a whole: a surcharge recovered, a missing asset added, an excessive fee or commission returned. In that case the court may allow the objectant’s counsel a fee from the estate, under SCPA 2110, on the reasoning that every beneficiary shared in the benefit and should share in the cost of obtaining it. The application is made in the accounting proceeding, supported by the same kind of affidavit of services, and the fee is measured by the benefit produced as well as the time spent. Objections that benefited only the objectant, or that failed, do not qualify. Our page on objecting to an accounting describes how objections are brought.
Examples
The percentage fee on a routine estate
An estate consists of an apartment and two bank accounts. The will is admitted without objection and the apartment is sold through a broker. The lawyer’s retainer set the fee as a percentage of the gross estate, and the executor paid it at the closing. At the accounting the affidavit of services shows a modest number of hours of ordinary probate work. The court fixes the fee on the hours at a reasonable rate, which comes to a fraction of the percentage, and directs the refund of the rest. The retainer does not save the fee.
The large fee that is sustained
An estate is tied up for two years in a will contest with examinations, depositions and motions, and the will is sustained. The executor’s lawyer bills a large fee supported by detailed contemporaneous time records. A beneficiary objects to the amount. The court approves the fee in full: the difficulty, the documented time and the result all support it. SCPA 2110 is a reasonableness review, not a discount.
The lawyer-executor
The lawyer who drafted the will is named executor and also acts as the estate’s attorney. The account shows a full commission and a legal fee that includes hours for closing bank accounts, paying bills and meeting the appraiser. The court strikes the executorial hours from the legal fee, because the commission already pays for them, and, finding no SCPA 2307-a disclosure, cuts the commission to one-half.
Practice Notes
For fiduciaries
Get a written retainer with an hourly rate and ask for itemized bills. Do not pay a percentage fee, and do not pay any fee in full before the accounting without court approval; pay on account and reserve the rest. Keep the lawyer’s bills with the estate records, because they go on Schedule C and the beneficiaries will see them. If the bill looks high, apply to have it fixed before you pay it; the application costs little and ends the argument.
For beneficiaries
Ask for the retainer and the itemized bills when you ask for the account. Compare the hours to the work you know was done. Note whether the lawyer did executor’s work, whether the fee is a percentage, and whether the lawyer also served as executor. Object to the fee at the accounting, before the decree, or bring a separate application if the accounting is far off. And weigh the objection: a fee objection that succeeds returns money to the estate; one that fails may cost you the fees of defending it.
For attorneys
Keep contemporaneous time records from the first day, separate legal from executorial tasks, and file the affidavit of services in the form the rules require. The burden is yours.
Talk to Us
We bring fee applications under SCPA 2110 for beneficiaries and fiduciaries, defend fees that were earned, and prepare the accountings on which fees are fixed. Fee questions usually travel with the rest of the account: see executor commissions, what can be paid from an estate account, and how an estate accounting works. To discuss a legal fee in an estate in the Surrogate’s Court of New York, Kings, Queens, Bronx, Richmond, Nassau, Suffolk or Westchester County, call us at 212-233-1233 or email [email protected].
