Meeting a Probate Attorney? Seven Questions to Settle Before You Sign the Retainer

A retainer agreement is the one document in a probate case that the executor signs as a private person rather than as a court appointee, and that distinction shapes everything that follows. The estate may end up paying the bill, or the executor may advance it and seek reimbursement later, or a judge may have to approve the amount before a dollar moves. All three arrangements are ordinary. What is not ordinary, and what a careful reader should refuse to accept, is a fee agreement that leaves the question unanswered. The questions below are the ones worth asking out loud, at the first meeting, before anything is signed.

1. What exactly is inside the scope, and what is billed separately?

Ask the attorney to describe the engagement as a sequence of tasks rather than as a stage of the case, because "handling the probate" can mean opening the estate and nothing more. A useful answer names the petition to open, the notices to heirs and creditors, the inventory and appraisal, the accounting, the petition for final distribution, and the discharge. Then ask what falls outside that list. Selling real property, running a business the decedent owned, tracking down a missing beneficiary, and defending a creditor claim are all common exclusions, and each one is a separate line of work with its own price.

2. Who actually prepares and files the documents?

Most routine probate paperwork is prepared by a paralegal working from a form set, reviewed by the attorney, and filed electronically by staff, which is efficient and entirely normal. The question matters because billing rates differ sharply by role, and because you want to know who answers the phone in week nine when the clerk rejects a filing for a missing verification. Ask for the names, the rates, and the review process. Ask also whether the executor will be expected to gather account statements, obtain date-of-death values, and forward mail, since that work is usually yours regardless.

3. Does the fee come from the estate or from your own pocket?

In states that set attorney compensation by statute as a percentage of the estate, the fee is paid from estate assets on court approval, generally at the end. In hourly states the firm may want a deposit up front, and an executor with no access to estate cash on day one sometimes advances it personally. Ask which applies, ask when the estate can reimburse you, and ask whether the reimbursement itself needs a judge's sign-off. Ask, too, what happens if the estate turns out to be insolvent, because that possibility changes who carries the risk.

4. How is a contested matter billed?

A will contest, a petition to remove the executor, an objection to the accounting, or a dispute among siblings over the house is litigation, and litigation is almost always billed hourly even when the underlying probate is a flat fee or a statutory percentage. That is the standard arrangement and there is nothing hidden about it, but the agreement should say so plainly. Ask what triggers the switch, whether a written estimate comes first, whether court approval is required for those fees, and whether an unsuccessful contest can be charged against the objecting beneficiary's share.

5. What does the written agreement have to say?

Read the retainer for four things: who the client is, how fees are calculated, what costs are separate, and how the engagement ends. The client should be named as you, the executor, in your representative capacity, not as the beneficiaries collectively, because that distinction governs who the attorney can advise. Costs such as filing fees, publication of notice, certified copies, appraiser charges, and bond premiums are normally passed through at actual cost rather than marked up. Look for a monthly statement requirement, a stated billing increment, and a clause permitting you to terminate the engagement in writing.

6. Which tax filings are covered?

Estates frequently need a final individual income tax return for the decedent and, if the estate earns income during administration, a fiduciary return on Form 1041. The Internal Revenue Service oversees both, and many probate firms do neither, referring the work to a CPA instead. Ask whether tax preparation is inside the fee, whether the firm will obtain the employer identification number for the estate, and who is responsible for the deadlines. A clean answer here prevents the most avoidable expense in probate, which is a penalty for a return nobody was assigned.

7. What can you file yourself?

Some executors want full representation and some want a lawyer for the opening petition and the final accounting only, with the routine notices handled in between by the executor. Limited scope representation is available in many jurisdictions, and asking for it is not an insult. Get the boundary written down: which documents you prepare, which the firm reviews, and what the firm charges to step back in if something goes sideways. An attorney who prices that arrangement clearly is telling you something useful about how the rest of the engagement will run.

Take the agreement home. A firm that expects a signature in the room is a firm you learn something from by declining, and the questions you ask before signing are the cheapest hours of the entire case.