Costs Associated With Obtaining Probate
Obtaining a grant of probate in the estate of a deceased person is common work for any solicitor who practises in wills and estates. A grant of probate means that the court has recognised that the will is valid and the estate can be distributed between the beneficiaries.
What does my solicitor have to disclose?
Before taking on the role of assisting an executor with applying for probate, solicitors are required to disclose their estimated costs associated with obtaining the grant and with acting in the estate administration. Where a solicitor proposes to charge more than $750, a costs agreement must be entered into between the solicitor and their client.
How much can my solicitor charge?
In New South Wales, the fees a solicitor can charge in relation to obtaining a grant of probate are fixed by state government regulations. The prescribed fees are based on the gross value of the estate assets.
Schedule 3 of the Legal Profession Uniform Law Application Regulations 2015 (NSW) prescribes the maximum fees a solicitor can charge for their work in relation to obtaining a grant of probate as follows:-
|Gross value of estate assets||Solicitor’s costs payable|
|Not exceeding $30,000||$560
Plus $13.33 for each $1,000 up to $30,000
|Exceeding $30,000 but not exceeding $150,000||$960
Plus $5.90 for each $1,000 in excess of $30,000
|Exceeding $150,000 but not exceeding $1,000,000||$1,670
Plus $4.47 for each $1,000 in excess of $150,000
|Exceeding $1,000,000 but not exceeding $3,000,000||$5,470
Plus $1.66 for each $1,000 in excess of $1,000,000
|Exceeding $3,000,000 but not exceeding $5,000,000||$8,800
Plus $1.10 for each $1,000 in excess of $3,000,000
|Exceeding $5,000,000 but not exceeding $10,000,000||$11,000
Plus $0.90 for each $1,000 in excess of $5,000,000
The prescribed fees are exclusive of GST. A solicitor is entitled to recover GST by charging an amount of 10% above the prescribed fees.
For example, where the estate assets total a gross value of $500,000, a solicitor may charge:-
- $1,670.00 (being an estate exceeding $150,000, but not exceeding $1,000,000)
- $1,564.50 (being $4.47 for each $1,000 in excess of $150,000)
Total prescribed fees: $3,234.50 (plus 10% GST)
TOTAL: $3,557.95 (incl GST)
What do the prescribed fees cover?
The prescribed fees cover the work performed by a solicitor in obtaining a grant of Probate, including:-
- Publishing the online notice to apply for probate;
- Drafting all relevant court documents including the Summons for Probate, Affidavit of Executor, Grant of Probate and Inventory of Property;
- Filing the application for probate with the court;
- Responding to any requisitions from the court; and
- Filing additional affidavits and materials in response to any requisitions.
Can my solicitor charge more?
It is important to note that the prescribed fees apply only to the costs associated with obtaining the grant of Probate. They do not apply to the solicitor’s work in actually administering the estate, which is usually billed at the solicitor’s hourly rate in accordance with the costs disclosed in their costs agreement.
Additionally, it should also be noted that the prescribed fees generally apply to an application for an ‘uncontested’ grant of probate. Where a solicitor is advising on a disputed probate application, additional charges will usually be incurred because there is more work involved in contested proceedings. These include cases where professional advice is required in relation to such issues as informal wills, rectification, testamentary capacity, duress, undue influence, fraud, lack of knowledge and approval and forgery.
Is there a court fee?
In addition to the solicitor’s fees, there are also court filing fees payable to the Supreme Court of New South Wales. The court filing fees are based on the gross value of the estate assets in New South Wales. The court updates the filing fees on 1 July of each year. The filing fees as at 1 July 2020 are as follows:
|Gross value of estate assets in New South Wales||Filing fee|
|Less than $100,000||$0.00|
|$100,000 or more, but less than $250,000||$772.00|
|$250,000 or more, but less than $500,000||$1,048.00|
|$500,000 or more, but less than $1,000,000||$1,607.00|
|$1,000,000 but less than $2,000,000.00||$2,141.00|
|$2,000,000 or more but less than $5,000,000.00||$3,568.00|
|$5,000,000 or more||$5,948.00|
It is also necessary to publish a notice of intention to apply for probate on the NSW Supreme Court Online Registry at a cost of $48.00.
To use the previous example, where the estate assets in New South Wales total $500,000, court filing fees will be as follows:-
- $48.00 (publication of notice of intended application for probate)
- $1,607.00 (being an estate of $500,000 or more, but less than $1,000,000)
- $48.00 (publication of notice of intended distribution)
TOTAL FILING FEES: $1,703.00
Adding the two together, where the estate assets in New South Wales total $500,000, the total costs in obtaining a grant of probate will be:-
- $3,557.95 (Solicitor’s fees, including GST);
- $1,703.00 (Court filing fees)
TOTAL COSTS OF GRANT: $5,260.95
Who pays the costs of obtaining the grant?
The court filing fee and solicitor’s professional costs associated with obtaining a grant of probate are estate expenses. These costs can be properly reimbursed to the executor from the estate assets prior to distribution to the beneficiaries.
What happens next?
Once probate has been granted by the court, the executor can then instruct their solicitor to proceed with the estate administration. In simple cases, this will usually involve calling in the estate assets, selling the assets if required and attending to distribution to the beneficiaries. A solicitor’s fees for the estate administration vary with the work required to be performed and will be determined by the nature and complexity of the estate.
If you need to apply for probate, or have any other questions relating to an estate, please call Armstrong Legal on 1300 038 223 or send us an email.