Fee Arrangements in Probate Litigation

There are feelings that clients experience when they first walk into my office with a potential probate litigation matter.    First and foremost,  they are bitter and angry over the manner in which a will or trust  was made or amended,   property was distributed,  or an estate was administered.   The second emotion they experience is the apprehension–even fright–over what it will cost them to vindicate their rights.   

These feelings are quite natural,  and any attorney who you choose to consult with must validate and give voice to them.  However, unlike the emotions about the events of the past that lead the client to want legal help,  issues pertaining to fees can be discussed and can often be resolved in a reasonable, expeditious and client-focused manner.

Litigation can be–but does not always have to be–an expensive undertaking.    For far too long our profession has used the "billable hour" as the mechanism for determining what attorneys should charge clients for their services.    More recently,  as the economy has soured,  attorneys have awakened to the realization that the billable hour is generally a poor device for determining a reasonable fee to charge a client.     This is particularly true in probate litigation.

Nearly all of the clients who come into my office lack the resources to finance expensive litigation.  However,  if the merits of a potential case are strong enough,  and the possible damages substantial enough,  it is possible to structure fee arrangements that are "incentivized".    These include everything from a straight "contingency" fee–where a fee is only payable if money or property is recovered for the client–to a non-refundable "fixed" fee with a bonus for obtaining "success" in the matter (with the definition of "success" being clearly written into the fee agreement).

These arrangements are best first discussed in the initial consultation.  Of course,   no such arrangements can be sensibly proposed unless and until the attorney has thoroughly reviewed the facts and legal considerations involved in the particular matter.   But I find that far too often that discussion never occurs;  clients simply assume that they will have to go "on the clock".   We owe it to clients as a profession to employ fee agreements that do not reward inefficiency,  but rather place the financial interests attorney and client in alignment with one another.


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