Are Hourly Probate Fees Crazy?

N.R.S. 150.060(2)(a) allows for an hourly fee.

N.R.S. 150.060(3) says, "If the attorney is requesting compensation based on the hourly rate of the attorney, he or she may include, as part of that compensation for ordinary services, a charge for legal services or paralegal services performed by a person under the direction and supervision of the attorney."

Some Nevada attorneys interpret this to mean that if their secretary writes up routine paperwork that the lawyer signs, the secretary's time in doing this "legal work" may be billed at the lawyer's hourly rate. Other firms will bill the secretary at a paralegal rate. Still other firms will bill some work at a lower associate's rate, but in such cases there can be a lot of duplication between what the high billing partner does and what his or her lower billing associates do. When a senior partner handed me my first probate case at the beginning of my legal career, he said, "Keep track of your hours and bill the higher of your hourly rate or the percentage fee." I thought this was pretty outrageous since I was naturally going to be slow on my first case. Perhaps that was the point. I once had another partner tell me at the beginning of my career on a non-probate case, "Bill the hell out of this file. If you are taking a shower and thinking about the case, bill it."

While it is true that many probate lawyers who bill by the hour work efficiently and honestly, I view the hourly rate as a sort of "honor bar" where there is very little supervision as to how many drinks someone actually takes and pays for. Some lawyers who bill by the hour and who are very knowledgable and therefore can work quickly may take the view that they should not be "penalized" for their skill and inflate their bills. Other experienced probate attorneys who can work quickly are honest in their hourly billing. However, probate involves a lot of picky, time-consuming paperwork and many law firms that bill on an hourly basis bill quite high hourly rates for this paperwork which requires some but not a great deal of skill.

If a client and lawyer get into an argument as to what was a reasonable hourly bill, many times it will be hard for the judge to know exactly how long something should have taken. Many judges will have an inclination to give the lawyer the benefit of the doubt unless the judge feels the lawyer has clearly tried to flim flam the client. Many Judges were once lawyers in private practice in the past, and don't begrudge lawyers high hourly fees.

N.R.S. 150.060(4) allows for "ordinary" services to be billed on a percentage rate of the estate with a 4% fee for the first $100,000 of the estate, a 3% fee for the second $100,000, a 2% rate for the next $800,000. This computes to a fee of $23,000 for the first million. For the next $9,000,000 the fee is 1%, for the next $15,000,000 the fee is ½% and for all amounts above $25,000,000, "a reasonable amount to be determined by the court."

N.R.S. 150.060(2)(d) allows for "any other method approved by the court pursuant to a request in the initial petition for appointment of the personal representative." This could include a contingency fee in the case of competing wills. (For example, Beautiful Young Woman and Adult Daughter each claim to have the authentic will of Old Man. In such a case it would be possible that the attorneys for each side would take the probate on a contingency fee basis. For example, Adult Daughter might claim that the earlier will leaving everything to her is the only valid will and that the later will leaving everything to Beautiful Young Woman was the result of undue influence or Old Man's dementia.)