You have likely seen advertisements by law firms for a variety of promotions; the ‘No Win, No Pay’ being one of the most popular. There has recently been a rise in the number of “fixed fee” advertisements for Probate and Deceased Estate administration, with the unsuspecting Executor often not informed as to what this actually means in terms of the costs associated with finalising a Deceased Estate.
It is important to remember that where Probate is required, a person has passed away. This is a time of emotion while family and friends come to terms with the loss of a loved one.
An Executor during this time will often be overwhelmed with the Probate process and will feel compelled to get the process moving as soon as they can. As part of this process, there will be considerations for the costs involved. This is where some people can be drawn into the “fixed fee” confusion, believing that they are getting the best value for money. Unfortunately, this is often not the case.
Each financial year, the Supreme Court releases a ‘Probate Fees and Charges’ scale document which outlines both the fee payable to the Supreme Court to lodge a Probate Application as well as the amount a solicitor is able to charge for their service in obtaining a Grant of Probate.
These two fees are calculated on a scale based on the gross value of an Estate. This works much like tax brackets. Except in certain circumstances, a solicitor is unable to charge fees above the Probate Fees and Charges set by the Supreme Court.
If you are an Executor and are considering a fixed fee services, make sure you cross-check the fixed fee that has been proposed against the Supreme Court scale costs. You should also confirm with the solicitor what is actually included in the fixed fee proposal to ensure that the Estate is not going to be liable for fees that you assumed were included in the initial proposal, but will in fact cost the Estate extra.
It is important to note that once the Grant of Probate has been obtained, a solicitor is able to estimate fees on their own terms for the administration and finalisation of the Estate. This will include closing accounts, assisting with share sales, dealing with superannuation, administering any Real Property, determining Tax obligations, as well as any other matter that may arise. An Executor needs to know whether this assistance is included in any fee estimate.
The Supreme Court has designed this scale of fees for obtaining Probate to eliminate the competitive nature of such a sensitive service. It is important that an Executor takes into consideration what services they are actually getting for the fees the Estate is paying to ensure that the value for money is actually realised.
To discuss any Estate queries you may have, please contact our Estate Planning Department on 02 4626 5077 or via email at kwolthers@marsdens.net.au.
The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.
