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The statutory probate fee in Texas is the fee that attorneys and executors can charge for probating an estate. This fee is set by state law under the Texas Estates Code. Understanding the statutory probate fee is important for anyone serving as an executor of an estate in Texas or who may need to hire a probate attorney.
What is the Statutory Probate Fee in Texas?
Section 352.002 of the Texas Estates Code establishes the following maximum statutory fee schedule that attorneys, executors, and administrators can charge for probate services:
| Value of Estate (excluding homestead and exempt property) | Maximum Fee |
| $0 – $5,000 | 5% of gross fair market value |
| $5,000 – $25,000 | $250 + 4% of excess over $5,000 |
| $25,000 – $50,000 | $1,050 + 3% of excess over $25,000 |
| $50,000 – $100,000 | $1,800 + 2.5% of excess over $50,000 |
| $100,000 – $900,000 | $3,300 + 2% of excess over $100,000 |
| $900,001 – $25,000,000 | $19,300 + 1% of excess over $900,000 |
| Over $25,000,000 | $265,300 + 0.5% of excess over $25,000,000 |
As the table shows, the percentage fee decreases as the value of the estate increases. Note that the value of the homestead and any exempt property is excluded when calculating the fee.
It’s important to understand that this schedule sets the MAXIMUM fees allowed. An attorney, executor or administrator can charge less than these amounts. Executors and administrators, even if they hire an attorney, are still entitled to reasonable compensation for their own time and effort as well.
To illustrate, let’s consider an estate valued at $600,000, excluding the homestead and exempt property. Using the statutory fee schedule, the maximum fee would be:
$3,300 + 2% of excess over $100,000 = $3,300 + 2% of $500,000 = $3,300 + $10,000 = $13,300
So in this example, the most an attorney or executor could charge in statutory fees would be $13,300. Again, they could charge less at their discretion.
Where to Find Updated Statutory Probate Fee Information
The statutory probate fee schedule is established in the Texas Estates Code, which is passed by the state legislature. Any changes to the fee schedule would come through legislative action.
To find the current fee schedule, refer to Section 352.002 of the Texas Estates Code. The Texas Constitution and Statutes, maintained by the Texas Legislature, is the official source for the current Estates Code.
Proposed changes to the Estates Code, including the fee schedule, can be tracked when the legislature is in session via the Texas Legislature Online. The site allows you to search for and track the progress of bills.
It’s important to stay informed about any potential changes to the statutory probate fee schedule. Changes could impact estate planning strategies, the decision to serve as an executor, and the overall cost of settling an estate.
Paying and Minimizing Probate Fees
Like other administrative expenses, probate fees are paid from estate funds before assets are distributed to beneficiaries. If the estate lacks sufficient cash, assets may need to be sold to cover the fees.
There are some ways to minimize probate fees potentially:
- Have a valid, properly structured will. Dying intestate (without a will) can complicate probate and increase costs. A well-drafted will can streamline the process.
- Place major assets in a living trust. Assets passed via a living trust are not subject to probate or probate fees. This can be especially beneficial for high-value estates.
- Use beneficiary designations on accounts. Assets like life insurance and retirement accounts pass directly to named beneficiaries outside of probate, so it’s crucial to ensure these designations are up-to-date.
- Negotiate fees with the attorney/executor. The statutory fees are a maximum, not a requirement. It may be possible to negotiate a lower fee, especially on larger estates.
- Consider using a fee structure other than the statutory fee. Attorneys and executors can charge an hourly rate or flat fee instead, which may result in lower total cost. Flat fees provide cost certainty.
- Serve as your own executor. The executor can waive compensation, eliminating that part of the fees. However, serving as executor is a significant responsibility that must be considered carefully.
- Gift assets during your lifetime. Gifting removes assets from your estate, reducing probate fees. However, gift tax implications must be considered.
Remember, while minimizing fees is desirable, the primary goals should be creating an estate plan that functions as intended and choosing the right executor. Errors or conflicts in either area can easily surpass any fee savings.
Other Considerations Related to Statutory Probate Fees
Attorney Fees vs Executor Fees
While the statutory fee schedule applies to both attorneys and executors/administrators, their roles are different. The attorney handles the legal process of probating the will and settling the estate. The executor is responsible for the day-to-day management of the estate, including gathering assets, paying debts, and distributing assets to beneficiaries.
In some cases, the executor may waive their fee, especially if they are the sole beneficiary. The attorney will still charge a fee for their legal services. If the executor hires an attorney, both can charge fees. However, the executor’s fee may be reduced if an attorney does much of the work.
It’s important for attorneys and executors to clearly document their work and the fees charged. Detailed records can be invaluable if heirs or beneficiaries challenge fees.
Fees for Dependent vs Independent Administration
In Texas, most estates are independently administered. This means the executor can take most actions without court supervision once the will is admitted to probate and the court approves the executor.
In a dependent administration, the executor must seek court approval for most actions. This is required if the deceased died intestate (without a will) or if the will does not provide for independent administration.
A dependent administration requires more court involvement, which can increase attorney fees. The court must approve the statutory fee charged in a dependent administration.
A dependent administration may be necessary despite the potentially higher fees if the estate is complex or contentious. In some cases, court oversight can be beneficial.
Challenging Excessive Fees
If an heir or beneficiary believes the attorney, executor, or administrator charges excessive fees, they can challenge them in court. The judge will review the fee request and decide if the fee is reasonable given the work performed and the size and complexity of the estate.
Factors the court may consider include:
- The time spent by the attorney or executor
- The complexity of the estate and issues encountered
- The experience and ability of the attorney or executor
- Fees charged for similar services in the area
If the court finds the fees excessive, it can order them reduced. If the fees have already been paid, the court can order reimbursement to the estate.
To avoid fee disputes, attorneys and executors should communicate clearly with beneficiaries about the work and fees charged. Regular, transparent communication can prevent misunderstandings and build trust.
What is the Statute of Limitations on Probate in Texas?
In addition to understanding statutory probate fees, it’s important to know the statute of limitations for probate in Texas. The statute of limitations sets the deadline for certain actions in the probate process.
In Texas, there is no strict deadline for initiating probate. However, there is a practical limitation. After four years from the date of death, the will is considered void and the deceased’s assets will pass according to the laws of intestacy as if there was no will.
This four-year limitation has some exceptions:
- For minors or persons of unsound mind, the four-year clock starts when the disability is removed (i.e., the minor turns 18 or the person regains capacity).
- If the probate applicant did not default in failing to present the will for probate within four years, they may still apply to probate the will as a muniment of title. This allows the will to transfer title to assets but does not allow estate administration.
If the deceased’s debts remain unpaid, creditors can initiate probate to seek payment from estate assets. Secured creditors can foreclose on property, securing the debt if payments are not current.
There are statutory deadlines for executors and administrators to complete certain actions, including:
- Filing an inventory, appraisement, and list of claims within 90 days after qualification
- Notifying beneficiaries within 60 days of admission of the will to probate
- Filing an affidavit closing the estate within 180 days if the estate qualifies for independent administration
Failing to meet these deadlines can lead to the executor being removed or held personally liable for damages to the estate.
Overall, while there is flexibility in starting probate, once started, there are deadlines in Texas law to keep the process moving and ensure estates are settled in a timely manner.
Conclusion
The statutory probate fee in Texas sets the maximum amounts attorneys, executors, and administrators can charge for probate services based on the estate’s value. Understanding this fee schedule is important for executors and beneficiaries to ensure appropriate fees. Strategies to potentially minimize probate fees include having a well-drafted will, using trusts and beneficiary designations, and negotiating fees. However, the ultimate focus should be creating an effective estate plan and selecting a capable executor.
In addition to statutory fees, understanding the statute of limitations for key actions is crucial. While Texas allows flexibility in initiating probate, certain actions must be taken within set timeframes once the process begins.
Navigating the probate process can be complex and emotionally challenging. Seeking guidance from experienced probate attorneys can ensure proper procedures are followed, fees are managed appropriately, and the wishes of the deceased are carried out as efficiently as possible.
Other Related Articles:
- What in a Will Goes to Probate in Texas, and What Does Not?
- What is a CSZ Probate in Texas? Understanding the Process
- What Court Probate in Texas Is: A Comprehensive Guide
- What Happens If You Don’t Probate a Will in Texas? A Comprehensive Analysis
- Do You Have to Probate a Will in Texas? A Comprehensive Guide
- Does a Surviving Spouse Need Probate in Texas?
- How Much Does Probate Cost in Texas? Avoid Costly Surprises
- How Long to Probate a Will in Texas: A Comprehensive Guide for Executors
- What questions should you ask a probate lawyer?
- Which Property Should Be Included In Texas Probate or Intestate
FAQs
The value includes all probate assets minus the homestead and exempt property. Non-probate assets like life insurance and retirement accounts are not included.
No, the statutory fee is the maximum allowed under Texas law. They can charge an hourly rate or flat fee instead of the statutory fee if disclosed upfront.
In an independent administration, the court does not approve the fees unless an heir challenges them as excessive. In a dependent administration, the court must approve the statutory fee.
There is no firm deadline, but the will can become void after 4 years, with assets passing intestate. Certain executor actions have statutory deadlines once probate is opened.
If the estate assets are insufficient, fees take priority over most other debts. Assets may need to be sold to cover the fees, or the attorney/executor may need to reduce their fee.
