Michigan law imposes substantial fiduciary duties on a person appointed by the probate court to serve as the personal representative of an estate. The laws and procedural rules that apply to probate and estate administration are complex and detailed.
If you attempt to handle an estate without assistance from a probate attorney, you may create significant problems for yourself and the estate. In some circumstances, a personal representative may even be individually liable for improper conduct. Talking with a lawyer before you apply for appointment as the personal representative helps you understand the extent of your legal and fiduciary duties.
A knowledgeable probate lawyer ensures that you fully perform your fiduciary duties and that all legal requirements for probate and estate administration are satisfied. If you are the personal representative of an estate, having that assurance and peace of mind is extremely important.
Section 700.3715 of the Michigan Probate Code enumerates transactions authorized for the personal representative of an estate. Subsection (w) specifically states that the personal representative may:
Employ an attorney to perform necessary legal services or to advise or assist the personal representative in the performance of the personal representative's administrative duties, even if the attorney is associated with the personal representative, and act without independent investigation upon the attorney's recommendation. An attorney employed under this subdivision shall receive reasonable compensation for his or her employment.
Under this statutory provision, a personal representative of an estate can pay probate attorney’s fees out of the assets of the estate if they are reasonable. Generally, the reasonableness of fees is determined based on the attorney’s experience or reputation, the difficulty and complexity of tasks performed, rates customarily charged in the locality, and the outcome achieved.
Michigan case law additionally provides that the lawyer’s services must be necessary for estate administration and beneficial to the estate. In other words, a lawyer can’t be compensated by the estate for furthering wrongdoing or for taking actions that are detrimental to the estate.
If a probate lawyer’s compensation meets all the statutory and case law requirements, it is paid by the estate. So, if you apply for court appointment as the personal representative of an estate, you are not personally responsible for paying the attorney’s fees, as long as there are sufficient assets in the estate to pay them.
In some states, probate attorneys determine their charges based on a percentage of the assets in the estate. However, Rule 1.5 of the Michigan Professional Rules of Conduct does not permit a lawyer to charge based on the value of the assets in the estate. In most cases, Michigan probate lawyers charge an hourly fee for services relating to probate and estate administration.
If you are the personal representative of a Michigan estate, choosing the least expensive probate lawyer based on hourly rate is not always the best strategy. A more experienced attorney (who may charge more) often takes less time to complete a task and is more likely to already have all the necessary knowledge to handle probate administration of an estate. If an estate is complex in terms of assets or issues, having an experienced probate attorney can avoid costly delays and mistakes.
The total amount of probate attorney’s fees for probate administration varies for each estate, based on a number of factors. The variables include the size of the estate, nature and complexity of assets, number of heirs or beneficiaries, location of assets (including whether there is property in another state), and whether disputes or litigation arise in connection with probate and estate administration.
While retaining a probate attorney results in fees paid from the estate assets (and therefore less property to distribute to beneficiaries), there are definite advantages and may also be time and cost savings. For example, a probate lawyer may be able to negotiate effectively with creditors of the estate to minimize expenses, as well as minimize the length of time it takes to complete probate administration. When necessary, a probate lawyer also can address conflict between beneficiaries and try to resolve issues without going to court. The attorney is someone objective who can help in challenging family circumstances.
Our lawyers at BRMM have many years of experience assisting clients with probate administration. If you are named as the personal representative of a decedent’s estate and require assistance with estate administration and probate, we can assist throughout the entire process to ensure that all Michigan legal requirements are met. We also can assist clients with assets and estates in Florida.
At BRMM, our compassion, credentials, and commitment set us apart. Call us at 248-641-7070 to talk with us about matters relating to any area of concern included in our practice. We serve clients in Troy, Oakland County, and surrounding areas, as well as out-of-state clients with estate and probate matters arising in Michigan.