Billing for Wills, Estates and Probate Matters in Australia

Wills and estates work spans a remarkably wide billing spectrum. At one end, a simple will can be drafted in an hour for a fixed fee. At the other, a contested family provision claim can run for years, involve multiple parties, and generate bills rivalling complex commercial litigation. The billing approach must match the work — and the client, who in estate matters is often elderly, grieving, or both.

This guide covers how to structure billing across the three main branches of wills and estates practice: estate planning, estate administration, and succession disputes.

Estate Planning: Wills, Powers of Attorney and Trusts

Simple wills

The bread and butter of estate planning — a straightforward will for an individual or a mutual will package for a couple. This work is almost universally billed on a fixed-fee basis because the scope is predictable and clients expect price certainty. The key billing challenge is ensuring the fixed fee covers the actual time required, including the initial instructions conference, the drafting itself, and the execution appointment.

A common mistake is underpricing simple wills to attract clients. A will priced at $200 that requires two hours of a solicitor's time (including the instructions conference, drafting, and execution) equates to an effective hourly rate of $100 — well below market and unsustainable for any firm.

Complex estate planning

Wills involving testamentary trusts, blended family considerations, asset protection structures, or business succession planning are substantially more complex and should be priced accordingly. These matters may require multiple conferences, tax advice, liaison with financial planners or accountants, and several drafts.

For complex estate planning, a capped-fee arrangement often works better than a pure fixed fee. Set a fee range based on the anticipated complexity, with the understanding that if the matter falls within the expected scope, the fee stays within the range. If complications arise (for example, the client's asset structure is more complex than initially disclosed), provide updated costs disclosure before exceeding the cap.

Powers of attorney and advance care directives

These instruments are frequently prepared alongside wills and can be included in an estate planning package fee. If prepared separately, fixed fees are standard. The billing description should identify the type of instrument (general power of attorney, enduring power of attorney, appointment of enduring guardian, advance care directive) and the specific terms discussed.

Estate Administration: Probate and Beyond

Estate administration — obtaining probate or letters of administration, collecting and distributing assets, dealing with creditors, and finalising the estate — is where billing becomes more complex. The work can take anywhere from a few months (simple estate, cooperative beneficiaries) to several years (complex assets, disputed entitlements, missing beneficiaries).

Who pays

A critical point that clients often misunderstand: the legal costs of estate administration are paid from the estate itself, not by the executor personally. The executor engages the solicitor as a representative of the estate. This means the ultimate "client" for billing purposes is the estate, and all beneficiaries have an interest in the reasonableness of the costs incurred.

This arrangement creates a unique billing dynamic. Because the executor is spending the estate's money rather than their own, there is less inherent resistance to costs — but the beneficiaries will scrutinise the costs when they receive the estate account. Costs that appear excessive, unnecessary, or unjustified will provoke complaints and may lead to the executor being required to bear the costs personally.

Common estate administration activities

The main billable activities in estate administration include obtaining the death certificate and original will, preparing the application for probate or letters of administration, publishing the notice of intention to apply for probate, lodging the application with the court and paying filing fees, writing to financial institutions to collect assets, dealing with real property (transfers, sales), obtaining tax clearances and lodging final tax returns, preparing the estate account and distribution statements, and distributing the estate to beneficiaries.

Each of these activities should be recorded separately with specific descriptions. "Estate administration work" as a billing description is unacceptable — it tells the beneficiaries nothing and will not survive any costs scrutiny.

Fee agreements for estate administration

Three models are common in Australian practice. Hourly billing is the most flexible approach and appropriate for complex estates where the scope is uncertain. Commission-based billing, where the fee is calculated as a percentage of the gross estate value (typically 1-4%), is traditional but increasingly scrutinised for large estates where the work involved may not justify the percentage. Fixed fee per stage works well for straightforward estates — set a fee for probate, a fee for asset collection, and a fee for distribution.

Whichever model is used, provide costs disclosure to the executor at the outset, including an estimate of total fees and a description of the main tasks involved. For more on structuring these arrangements, see our article on retainer agreements for Australian lawyers.

Succession Disputes: Family Provision and Will Challenges

Family provision claims

Family provision claims under the Succession Act 2006 (NSW), the Administration and Probate Act 1958 (Vic), and equivalent legislation in other states are the most common form of will dispute. An eligible person claims that the deceased's will does not make adequate provision for their proper maintenance, education, or advancement in life.

Billing for family provision claims mirrors general civil litigation — hourly billing with costs disclosure, staged estimates, and careful recording. However, there is an important distinction regarding costs: the historical practice has been for all parties' costs to be paid from the estate. Courts are increasingly departing from this practice, particularly where claims lack merit or reasonable settlement offers have been rejected.

This shifting costs landscape means clients need clear advice at the outset about who will bear the costs if the claim fails. A claimant who assumes "the estate pays everything" may face a personal costs order if their claim is dismissed.

Will validity challenges

Challenges to the validity of a will — on grounds of lack of testamentary capacity, undue influence, or failure to comply with formal requirements — are genuine adversarial litigation. They are billed on an hourly basis and follow the same principles as any other contested court proceeding. The specific billing activities include obtaining medical records and expert opinions on testamentary capacity, taking witness statements from those present at the execution of the will, researching the law on the specific ground of challenge, and preparing court documents and attending hearings.

Working with Elderly and Vulnerable Clients

Estate planning and administration frequently involves elderly clients, and this creates specific billing considerations that go beyond the purely technical.

Conferences may take longer. An elderly client may need more time to understand legal concepts, may become confused or fatigued during long meetings, and may need matters explained in simpler language. This additional time is legitimate billing time, but descriptions should focus on the legal content of the conference rather than characterising it as accommodation for the client's age or capacity.

Capacity questions. If there is any question about the client's testamentary capacity, the time spent investigating and documenting capacity — obtaining medical reports, conducting the assessment interview, making detailed file notes — is billable work that protects both the client and the firm. For guidance on recording detailed attendance notes, see our article on file notes for Australian lawyers.

Family dynamics. Estate planning clients often attend with family members who may have their own views about the will. Managing these dynamics, identifying potential conflicts of interest, and ensuring the client's wishes are independently obtained all take time. The billing should reflect this without disclosing sensitive family information in the descriptions.