When Are Attorney Fees Paid in a Maryland Probate?

In Maryland, the probate attorney's fee is an expense of the estate. It comes out of estate assets, not your own pocket, and it cannot be paid until either the Orphans' Court signs an order approving it or every interested person and open-claim creditor signs a written consent filed with the Register of Wills.

So when attorney fees are paid in a Maryland probate is a question about approval and about cash, not about your own bank account. I have been doing this in Maryland for more than 25 years, and this is the one people are most embarrassed to ask out loud. It comes up in nearly every conversation I have about selling an inherited house in Maryland. Many of the homeowners we help never sell to us.

Here is the part that surprises people. In the payment order the Maryland Register of Wills publishes from Maryland Estates and Trusts Article section 8-105, compensation for legal services ranks fourth of twelve when an estate cannot pay everyone, ahead of the family allowance, the decedent's taxes, and last illness medical bills. The lawyer is near the front of the line. Not the back.

Here's What You Need to Know

• The fee is an expense of the estate under Maryland Estates and Trusts Article section 7-602, not a personal debt of the personal representative.

• No money moves until the Orphans' Court signs an order on a verified petition, or everyone required signs Register of Wills Form RW1138.

• Maryland caps the personal representative's commission but sets no fee schedule for attorneys.

• Where a house is the only real asset, the fee is normally deferred and funded at settlement.

Who Is Responsible for Maryland Probate Attorney Fees

The estate is. Maryland Estates and Trusts Article section 7-602(a) entitles an attorney to reasonable compensation for services rendered to the estate, to the personal representative, or to both. The Register of Wills says it plainly on its Administration of Estates page: a payment out of estate funds to the personal representative or to the attorney is permitted only after the applicable petition or consent has been filed.

There is a structural fact underneath the fear, though. You sign the engagement agreement. Maryland's appellate courts describe an estate as a collection of assets and liabilities rather than a legal entity like a corporation, so the retainer is signed by a person, and the right to shift that cost onto the estate runs through the approval mechanism.

I went looking for a clean answer to the next question and it is not there. No Maryland statute and no reported Maryland appellate decision says whether the personal representative is personally on the hook for a bill the Orphans' Court declines to approve in full. Anyone who answers that flatly is guessing. Ask the attorney in writing, before you sign.

If you are not sure which of these applies to your situation, that is a five minute call. Free, and you are never required to sell anything.

The Two Ways a Maryland Probate Attorney Gets Paid

Maryland has exactly two lawful routes for moving estate money to the attorney, and which one applies changes both the timing and whose signature you need. It is one of the questions we get asked most.

What is the petition route?

The personal representative or the attorney files a verified petition with the Register of Wills for the county where the estate is open, and the Orphans' Court for that county decides it. No payment may be made before the court signs the order. That is Maryland Estates and Trusts Article section 7-602(b) and Maryland Rule 6-416.

The petition has to state fees previously allowed, an estimate of future requests, the amount requested now, and the basis for it in reasonable detail. Under Maryland Estates and Trusts Article section 7-502, notice goes to all interested persons and every creditor with an open claim, who then have 20 days from the sending of that notice to request a hearing.

One local detail. In Prince George's County, Charles County, and most of Maryland, three elected Orphans' Court judges hear it. In Harford, Howard, and Montgomery Counties, circuit court judges sit as the Orphans' Court instead, under Article IV of the Maryland Constitution as amended in 2022.

What is the consent route?

If everyone signs, no court order is needed. Maryland Estates and Trusts Article section 7-604 lets the personal representative pay commissions and attorney's fees without court approval on four conditions, using Register of Wills Form RW1138, current revision dated October 1, 2024.

1. Every creditor with an open claim and all interested persons consent in writing.

2. Commissions and attorney's fees combined stay within the amount provided in Maryland Estates and Trusts Article section 7-601.

3. The signed consent states the amounts and is filed with the Register of Wills.

4. Each payment covers services already rendered, unless the consent is filed with the final administration account or with the final report under modified administration.

That combined amount is set by section 7-601 at nine percent of the first $20,000 of the estate subject to administration, plus 3.6 percent of anything above that. It is a ceiling on the commission and the attorney's fee together, not a rate card for either one. The Register of Wills also states that attorney's fees may exceed that maximum on petition to the Orphans' Court and for good cause.

	Petition route	Consent route
Authority	Maryland Estates and Trusts Article section 7-602(b); Maryland Rule 6-416	Maryland Estates and Trusts Article section 7-604
Who has to agree	No consents required; the court decides after notice	All interested persons and every creditor with an open claim
Paperwork	Verified petition plus the section 7-502 notice	Form RW1138 (Rev. 10/1/2024), filed with the Register of Wills
Ceiling	Fair and reasonable standard; the Register of Wills states fees may exceed the section 7-601 maximum for good cause	Commissions and fees combined stay within section 7-601
Small estates	The only route available	Not available

When Does the Money Actually Move?

There is no single date in Maryland law when probate attorney fees become payable. Timing follows the deadlines the Register of Wills publishes and whether there is cash in the estate account. The Inventory and Information Report is due within three months of appointment and the first account within nine.

Small estates work differently, and this catches people. A small estate is one where probate assets have a gross value of $50,000 or less, or $100,000 or less where the surviving spouse is the sole legatee or heir. There, the Register of Wills states, commissions and fees may be granted only by petition to the Orphans' Court.

Keep one thing separate as you read this. A mortgage on the decedent's house is its own subject with its own paperwork, and this article does not cover it. If that is part of your situation, read how the Maryland foreclosure timeline works so you know what you are looking at.

What Happens If the Estate Has No Cash?

The fee waits, and it gets funded from the sale of estate property. This is the most common version of the problem I see.

A woman called me a few springs ago about her mother's brick rancher in Capitol Heights. Three sisters, one house, no money anywhere. A retainer quote from a firm downtown had them convinced they could not afford to open the estate at all. I drove out, and we sat at the kitchen table while I asked what nobody had asked yet: who holds legal title to this house right now. The house was the way through, not the obstacle.

Maryland Estates and Trusts Article section 1-301(a) puts legal title to the decedent's property, real estate included, in the personal representative rather than the heirs. Section 7-401 lets the personal representative exercise statutory powers without applying to the court, and that includes selling property.

Settlement is then the funding event. The mortgage and recorded liens come off the gross proceeds first, because a lien sits outside the section 8-105 payment order. What is left lands in the estate account, and the approved fee is paid from there.

The government's own charges may be nothing. Under the Register of Wills schedule effective October 1, 2022, the probate fee is $0 for a probate estate valued at less than $50,000, and there is no fee to open a small estate. Maryland Estates and Trusts Article section 2-206(a)(4) also requires the register to waive fees where the estate cannot pay by reason of poverty and the decedent's Maryland real property either goes to an heir who lives on it, or is lien-encumbered and subject to tax sale under the Tax-Property Article. Poverty has a definition there: household income at the time of death below half the state median, or a personal representative represented through the Maryland Legal Services Corporation. Almost nobody writing about this mentions it.

You do not have to work this out alone. Free consultation, every option explained, including the ones that do not involve us. The home support form works as well as a call.

This is also where an attorney earns their fee. Opening the estate, filing the inventory, getting the consents right: that is legal work worth paying for. We can connect you with someone who handles these in your county, and the introduction costs you nothing.

The Orphans' Court Can Approve Less Than the Lawyer Bills

It happens, and it is not rare. In one Montgomery County estate valued between roughly $390,000 and $450,000, the personal representative petitioned for $103,174 in counsel fees and the Orphans' Court awarded $27,000. That opinion is unreported, which under Maryland Rule 1-104 makes it an example rather than precedent. The reported Castruccio case shows the same shape at a different scale: $1,694,275.50 in fees requested, $785,370.00 approved by the Circuit Court for Anne Arundel County, later vacated and sent back for recalculation.

Here is my mildly unpopular opinion. Nearly every page you will find on Maryland probate fees is published by a law firm or a national estate-services company, and not one I read tells you the court often approves less than the amount billed. That omission is not an accident.

A man in Charles County brought me an unsigned retainer letter last year and asked whether the number on it was normal. I could not tell him, and I said so, because Maryland publishes no fee schedule for probate attorneys the way it caps commissions. What I did ask was whether he had put the other question to the firm: what happens if the Orphans' Court approves less than you bill. He went quiet. That question belongs in the conversation before the signature, and it is part of how we work and how we get paid.

Where This Leaves You

If any of this sounds like where you are, you already know you need to talk to somebody who has been through it before. We are not a law firm and none of this is legal advice. What we can do is tell you where you stand, which of the two payment routes fits your estate, and who in your county handles the rest.

It costs nothing to find out, and we will say so if the answer is that you do not need us. Reach out and tell us what you are dealing with. No pressure, no obligation, and nobody shows up at your door.

If the house is the part you are stuck on, our guide to what happens to an inherited Maryland house picks up where this one stops.

Frequently Asked Questions

Do I have to pay the probate attorney out of my own pocket in Maryland?

No. In Maryland the attorney's fee for administering an estate is an expense of the estate under Maryland Estates and Trusts Article section 7-602, and it is paid from estate assets. You do sign the engagement agreement personally, so ask the attorney in writing what happens if the Orphans' Court approves less than the amount billed, or if the estate cannot pay.

When are attorney fees paid in a Maryland probate case?

There is no fixed date in Maryland law. Payment happens once there is money in the estate account and either the Orphans' Court signs an order on a verified petition under Maryland Rule 6-416, or all interested persons and open-claim creditors sign Register of Wills Form RW1138. Since 2022, a consented payment must cover work already performed unless it is filed with the final account.

Can a Maryland probate attorney charge more than the statutory percentage?

Yes. The nine percent plus 3.6 percent formula in Maryland Estates and Trusts Article section 7-601 is a combined ceiling on commissions and attorney's fees, and it governs the consent route. The Maryland Register of Wills states that attorney's fees may exceed that maximum on petition to the Orphans' Court and for good cause.

What if the only asset is a house and the estate has no cash?

The fee is normally deferred and funded at settlement. Under Maryland Estates and Trusts Article section 1-301, legal title passes to the personal representative rather than the heirs, and section 7-401 permits a sale without applying to the court. Liens come off the proceeds first, then the approved attorney's fee is paid from the estate account.

How much does the Register of Wills charge to open an estate in Maryland?

Under the Maryland Register of Wills schedule effective October 1, 2022, the probate fee is $0 for a probate estate valued at less than $50,000, $100 from $50,000 to just under $100,000, and $200 from $100,000 to just under $500,000. There is no fee to file a petition to open a small estate.