Who Pays Probate Attorney Fees in New York?

In New York, probate attorney fees are generally paid by the estate, not by the executor or beneficiaries personally. As a practical matter, however, the proposed executor or administrator usually advances the retainer out of pocket to get the case started, then reimburses themselves from estate funds once Letters are issued and an estate bank account is opened. The reasonableness of those fees is ultimately reviewable by the Surrogate's Court under SCPA 2110, which gives the court authority to fix and determine the compensation of an attorney for services rendered to an estate or fiduciary.

Reviewed by Albert Goodwin, Esq., a New York estate and probate attorney admitted in New York with offices in Manhattan, Brooklyn, and Queens. Last updated: June 2024.

Why the Executor Usually Pays the Retainer First

When a New York estate is opened, there is initially no estate bank account and no Letters Testamentary or Letters of Administration authorizing anyone to access the decedent's assets. A petition for probate (where there is a will) or a petition for administration (where there is none) must first be filed in the Surrogate's Court of the county where the decedent resided — New York County, Kings County (Brooklyn), Queens County, or wherever the decedent was domiciled.

Because no estate funds are yet accessible, the nominated executor or proposed administrator typically pays the attorney's retainer from personal funds. In New York probate practice, retainers commonly start around $3,500–$5,000 for a routine, uncontested matter and climb well beyond $10,000 for larger or contested estates. This advance is treated as a loan to the estate that is reimbursed once funds become available.

How Reimbursement Works in a New York Estate

The reimbursement mechanics are standard and should be documented for the eventual accounting:

1. The proposed fiduciary pays the retainer from personal funds when the engagement begins.
2. The Surrogate's Court issues Letters Testamentary or Letters of Administration.
3. The fiduciary opens an estate bank account using the estate's tax identification number.
4. Estate assets are collected and consolidated into the estate account.
5. The fiduciary reimburses the advanced retainer from the estate account and records it as an estate administration expense.

Keep the retainer agreement and bank records showing both the original payment and the reimbursement. These appear later in the formal or informal accounting, where beneficiaries can review them. Properly documented attorney fees are a legitimate administration expense that comes off the top of the estate before distribution.

How New York Attorneys Charge for Probate

Unlike some states (for example, California and Florida) that set statutory probate attorney fee schedules tied to estate size, New York does not impose a fixed statutory percentage for probate attorney fees. Instead, fees must be reasonable, and the Surrogate's Court has the final say under SCPA 2110. New York attorneys typically use one of these arrangements:

• Hourly fees. The most common arrangement for administration work. New York probate attorney hourly rates generally range from roughly $300 to $600+ depending on experience and the firm.
• Flat fees. Some attorneys offer a flat fee for routine, uncontested probate where the scope is predictable.
• Percentage fees. A percentage of the estate (sometimes quoted around 5%) is occasionally used, but in New York it is not a statutory entitlement — any percentage fee remains subject to the court's reasonableness review and must be supported if challenged. Be cautious of a percentage fee on a large but simple estate, where the percentage may exceed what the work actually warrants.
• Contingency fees. Used only in contested matters such as a will contest or a recovery proceeding — not in ordinary probate. Under a contingency arrangement the client pays nothing up front, and the attorney receives an agreed share (often one-third) of any recovery. Contingency arrangements must comply with New York's rules on written fee agreements.

Court Review of Attorney Fees Under SCPA 2110

The most important New York-specific point is that the Surrogate's Court can review and reduce attorney fees even after they have been charged. SCPA 2110 allows the court, on its own initiative or on the application of any interested party, to fix and determine the compensation of an attorney for services to the estate. This protects beneficiaries from excessive fees and is a recurring issue in accounting proceedings.

In evaluating reasonableness, New York Surrogate's Courts apply the long-established factors from Matter of Freeman, 34 N.Y.2d 1 (1974), and Matter of Potts, 213 App. Div. 59 (4th Dep't 1925), aff'd 241 N.Y. 593 (1925). Those factors include:

• The time and labor required and the difficulty of the questions involved;
• The skill required to handle the matter properly;
• The lawyer's experience, ability, and reputation;
• The amount involved and the benefit resulting to the estate;
• The customary fee charged for similar services;
• The responsibility involved; and
• The results obtained.

If the court finds the fee excessive under these factors, it reduces the fee — and the reduction comes out of the attorney's compensation, not from additional estate funds. The court may require the attorney to submit an affidavit of legal services detailing the time spent and tasks performed.

How NYC-Area Surrogate's Courts Handle Fee Objections

Fee disputes in the New York City area surface most often during the accounting. When an executor or administrator files an accounting (formal or informal) in the New York County, Kings County, or Queens County Surrogate's Court, the attorney's fees paid by the estate are disclosed as a Schedule C administration expense. A beneficiary may file objections to those fees.

When objections are filed, the court typically directs the attorney to submit an affidavit of services and may hold a hearing under SCPA 2110 to determine reasonableness. In practice, NYC-area Surrogate's Courts scrutinize fees more closely where the estate is modest relative to the fee charged, where the work was largely administrative, or where the documentation is thin. Well-kept time records and a clear written retainer agreement go a long way toward sustaining a fee on review.

Worked Example: Executor Advance and Reimbursement

Suppose a Brooklyn resident dies with a will leaving a co-op apartment and a brokerage account totaling roughly $800,000. The nominated executor retains counsel and pays a $6,000 retainer from personal funds. Counsel files the probate petition in the Kings County Surrogate's Court and, after the will is admitted, obtains Letters Testamentary. The executor opens an estate account, transfers in liquidated assets, and reimburses the $6,000 advance from the estate. As the matter proceeds — transferring the co-op, settling the brokerage account, and preparing the accounting — additional fees accrue and are paid from the estate account, all disclosed in the final accounting and subject to SCPA 2110 review if a beneficiary objects.

When Fees Are Disputed

Attorney fee disputes in New York estates generally fall into three categories:

Between the executor and the attorney. The fiduciary disputes specific charges or the scope of work. These can often be resolved by discussion or through the fee dispute arbitration program of the relevant bar association. See, for example, the New York City Bar fee dispute resolution program and New York's statewide attorney-client fee dispute resolution rules (22 NYCRR Part 137).

Between beneficiaries and the estate. Beneficiaries object to fees paid from the estate. These objections are resolved in the accounting proceeding under SCPA 2110.

Within a contested estate generally. Because the probate attorney represents the fiduciary — not the beneficiaries directly — conflicts about the attorney's role and compensation can become entangled with the underlying family dispute.

Fees in Contested New York Estates

Contested matters — a will contest, a removal proceeding, or a breach of fiduciary duty claim — generate substantially higher fees than routine administration because they involve discovery, depositions, motion practice, and possibly trial in the Surrogate's Court. Those fees remain subject to SCPA 2110 reasonableness review.

In limited circumstances, fees may be shifted. New York courts may impose costs or sanctions for frivolous conduct under 22 NYCRR Part 130, and an attorney whose efforts create or preserve a fund for the estate may seek compensation from that fund. Fee-shifting is the exception, not the rule, and depends on the specific facts.

Practical Ways to Keep Probate Fees Down

• Handle non-legal tasks yourself. Gathering documents and making routine bank inquiries does not require attorney time.
• Batch your questions rather than contacting counsel repeatedly.
• Use email for non-urgent items, which generally costs less than calls.
• Provide complete information up front so the attorney isn't billing time chasing missing records.
• Make decisions promptly — stalled cases accrue more cost.
• Ask for an estimate at the first consultation and request that paralegal-appropriate work be billed at lower rates.

Related Reading

• Estate accounting proceedings in New York
• Obtaining Letters Testamentary
• Obtaining Letters of Administration
• A sample NYC probate timeline

Speak With a New York Probate Attorney

If you are an executor or administrator weighing how probate attorney fees will be paid, or a beneficiary with questions about fees charged to an estate, the Law Offices of Albert Goodwin can help. We have offices in New York City, Brooklyn, and Queens. Call 212-233-1233 or email [email protected].

This article is for general informational purposes about New York law and is not legal advice. Statutes, court rules, and Surrogate's Court practice change, and how they apply depends on your specific facts. Consult a licensed New York attorney about your situation.