Key Takeaways:
- Statutory fee cases—including probate, conservatorship, guardianship, and fee-shifting matters—require meticulous time tracking even when the ultimate fee is determined by formula or court approval, not by your billable hours
- California’s statutory probate fee schedule awards attorneys 4% of the first $100,000, then declining percentages on higher amounts, meaning a $500,000 estate generates $13,000 in fees regardless of actual time spent
- The lodestar method (reasonable hours × reasonable hourly rate) is the gold standard for court-determined fees, and contemporaneous billing records are essential—courts routinely reduce fee requests that lack proper documentation
You’ve just wrapped up a probate matter that took six months, dozens of court filings, and more client hand-holding than you’d care to remember. But when it comes time to get paid, there’s a catch: you don’t just send a bill. You petition the court, and a judge determines whether your fee is reasonable.
Welcome to the world of statutory fees—where the rules of engagement are fundamentally different from your typical hourly or flat fee arrangement. For mid-sized law firms handling probate estates, conservatorships, guardianships, or fee-shifting civil rights cases, understanding how to navigate court-determined billing isn’t optional. It’s the difference between getting paid fairly for your work and leaving money on the table.
The challenge? Most legal billing software and workflows are built for traditional billing models. Statutory fee matters require a different approach—one that balances rigorous documentation with the reality that your ultimate compensation may have little connection to the time you actually spent.
Let’s break down exactly how statutory fees work, which practice areas they affect, and how to structure your billing processes to maximize recovery while minimizing headaches.
What Are Statutory Fees (And Why Do They Exist)?
Statutory fees are attorney compensation amounts established by law rather than negotiated between attorney and client. They exist because certain legal matters involve vulnerable populations or public interests that require court oversight of attorney compensation.
The logic is straightforward: when you’re representing a deceased person’s estate, an incapacitated adult, or a minor, there’s no truly independent party on the other side of the fee negotiation. The person whose money will pay your fees is either dead, mentally incapable of protecting their interests, or a child. Courts step in to ensure attorneys can’t take advantage of these situations.
Statutory fees take several forms:
Percentage-based fees are calculated as a percentage of the estate or recovery value. California’s probate fee schedule is the classic example—attorneys receive 4% of the first $100,000, 3% of the next $100,000, 2% of the next $800,000, and declining percentages thereafter. A $500,000 estate generates exactly $13,000 in statutory fees, whether the probate takes two months or two years.
Hourly rates subject to court approval are common in conservatorship and guardianship matters. You bill hourly, but the court must approve your fees before the ward’s estate pays them. If the judge thinks your time was excessive or your rate unreasonable, the fee gets cut.
Lodestar calculations apply in fee-shifting cases—civil rights, consumer protection, and other statutory frameworks where the losing party pays the prevailing party’s attorneys’ fees. The court multiplies reasonable hours by a reasonable hourly rate to determine the award, potentially adjusting up or down based on various factors.
Fixed statutory schedules appear in some jurisdictions for specific proceedings. Certain courts publish fee schedules for guardianship appointments, for example, with flat amounts for initial filings and hearings.
Understanding which model applies to your matter is step one. Step two is structuring your entire billing workflow around that model’s requirements.
The Practice Areas Where Statutory Fees Apply
If your mid-sized firm handles any of the following practice areas, you’re dealing with statutory or court-determined fees:
Probate and Estate Administration
Probate is the most visible statutory fee context. States like California, Florida, Arkansas, Iowa, Missouri, Montana, and Wyoming have statutory fee schedules based on estate value. Even in states without mandatory schedules, courts retain authority to determine whether fees are reasonable.
The catch with probate statutory fees: they’re calculated on gross estate value, not net. If a deceased person owned a $1 million house with a $800,000 mortgage, the attorney’s fee is based on $1 million. This can make statutory fees extremely generous for some estates and punishing for others, depending on the complexity of the work required.
For “ordinary” probate services—filing petitions, notifying creditors, preparing inventories, obtaining court orders for distribution—the statutory fee covers everything. But courts can also award “extraordinary” fees for services outside the norm: tax matters, litigation, contested proceedings, or complex asset management.
Extraordinary fees require court approval and typically must be supported by detailed billing records showing the specific work performed and why it fell outside ordinary services.
Conservatorship and Guardianship
When courts appoint someone to manage the affairs of an incapacitated adult or minor, attorney fees must be approved before payment from the ward’s estate. This applies to:
- Attorneys for the petitioner (the person seeking appointment)
- Attorneys for the proposed conservatee/ward
- Court-appointed counsel
- Attorneys advising the conservator/guardian after appointment
The rules vary significantly by jurisdiction. Some states have published fee schedules for initial proceedings. Others require detailed billing submissions with court approval at each stage. California Probate Code Section 2647 states explicitly: “No attorney fees may be paid from the estate of the ward or conservatee without prior court order.”
This means you can’t simply bill and collect. Every fee must be approved, and the court can reduce your requested amount if it finds the hours excessive or the rate unreasonable.
Fee-Shifting Cases (Civil Rights, Consumer Protection, Employment)
Many federal and state statutes authorize courts to award attorneys’ fees to prevailing parties. These “fee-shifting” provisions appear in:
- Civil rights laws (42 U.S.C. § 1983, Title VII)
- Consumer protection statutes (Magnuson-Moss Warranty Act, state UDAP laws)
- Employment discrimination laws (ADA, ADEA)
- Environmental statutes
- Certain contract disputes with fee-shifting provisions
In these matters, you represent your client on hourly or contingency terms, but the fee recovery comes from the opposing party after you prevail. The court determines the amount using the lodestar method, and the opposing party’s counsel will aggressively challenge your fee petition.
The practical reality: you might have a contingency fee agreement with your client entitling you to 33% of recovery, but the statutory fee award might be calculated at $150,000 based on lodestar—and you may face the ethical question of whether the client or the fee award determines your compensation.
Bankruptcy Proceedings
Debtor attorneys, trustees, and other professionals in bankruptcy cases must seek court approval for all fees. The bankruptcy court reviews detailed fee applications, and the U.S. Trustee’s office often objects to excessive or inadequately documented charges.
Bankruptcy fee applications require extraordinary specificity—contemporaneous time records, task-by-task descriptions, and justifications for staffing decisions. Many firms find bankruptcy billing requirements the most demanding documentation standard they encounter.
Why Traditional Billing Approaches Fall Short
Here’s the fundamental problem: most law firm billing processes optimize for the wrong goal when statutory fees are involved.
In traditional billing, the objective is simple: capture time accurately, generate invoices efficiently, and collect payment promptly. The better your time tracking, the more complete your billing—and the more you get paid.
But statutory fee matters flip this equation in important ways.
When fees are formula-based (like probate percentage fees), your actual time has no bearing on compensation. An estate worth $500,000 pays $13,000 in attorney fees whether you spend 50 hours or 150 hours on the matter. If you spend 50 hours, your effective hourly rate is $260. If you spend 150 hours, it’s $87. The incentive structure rewards efficiency, not comprehensive time capture.
Yet here’s the wrinkle: you may need time records anyway. If you seek extraordinary fees beyond the statutory amount, you’ll need to document exactly what additional work you performed. And if a beneficiary challenges your fee as excessive (yes, this happens even with statutory amounts), contemporaneous records showing what you actually did become your defense.
When fees require court approval, the standard is reasonableness—and judges have wide discretion in determining what’s reasonable. Your time records become evidence submitted to a skeptical reviewer who may have different ideas about how long tasks should take.
When fees are calculated by lodestar, your billing records are literally the foundation of your fee petition. Courts routinely reduce requests that lack contemporaneous documentation, include excessive hours, or feature block billing that prevents meaningful review.
The solution isn’t to abandon time tracking for statutory fee matters—it’s to adapt your tracking practices to the unique requirements of these cases.
The Lodestar Method: Understanding How Courts Calculate Fees
If you handle fee-shifting cases, you need to master the lodestar calculation. It’s the dominant method courts use to determine reasonable attorneys’ fees, and understanding its mechanics shapes how you should document your work.
The lodestar formula is deceptively simple:
Reasonable Hours × Reasonable Hourly Rate = Lodestar (Base Fee)
The court may then adjust this figure up or down based on various factors, though multipliers have become increasingly rare in most jurisdictions.
Determining Reasonable Hours
Courts evaluate whether the hours claimed were actually spent and reasonably necessary. They’ll reduce hours for:
- Excessive time on routine tasks: If you bill 4 hours for drafting a simple discovery response that should take 1 hour, expect a reduction.
- Duplicative work: Multiple attorneys attending the same hearing without justification, or successive lawyers reviewing the same documents unnecessarily.
- Unsuccessful claims: Time spent on claims that failed may be non-recoverable, though courts recognize that some “dead ends” are inherent in litigation.
- Block billing: Lumping multiple tasks into single time entries prevents courts from evaluating reasonableness. Many courts reduce block-billed entries by 20-30% as a matter of course.
- Inadequate descriptions: “Research” or “trial preparation” tells the court nothing. Entries should specify what was researched and why.
- Clerical tasks billed at attorney rates: Filing, copying, and scheduling shouldn’t be billed at $400/hour.
Determining Reasonable Hourly Rate
Courts look to the “prevailing market rate”—what lawyers of comparable experience and skill charge for similar work in the relevant community. Evidence may include:
- Affidavits from other attorneys regarding prevailing rates
- Published rate surveys
- Prior fee awards in similar cases
- The attorney’s actual billing rates with other clients
Importantly, courts don’t simply accept the attorney’s stated rate. If you bill corporate clients $500/hour but the prevailing rate for civil rights work in your market is $350/hour, expect the lower rate to apply.
Adjustments to the Lodestar
Historically, courts applied multipliers to enhance fees in risky or exceptional cases. The Supreme Court has since limited this practice, establishing that the lodestar is presumptively reasonable. Upward adjustments are now rare and require exceptional circumstances.
Downward adjustments remain common for factors like:
- Limited success (prevailing on only some claims)
- Redundant or excessive staffing
- Lack of billing judgment (failing to exclude clearly non-recoverable time)
Documentation Requirements: Building a Bulletproof Fee Application
Whether you’re seeking statutory probate fees, court-approved conservatorship fees, or a lodestar award, documentation is everything. Courts don’t award fees based on your say-so—they require evidence.
Contemporaneous Time Records Are Essential
The gold standard is detailed, contemporaneous billing records. “Contemporaneous” means recorded at or near the time the work was performed—not reconstructed weeks later from memory or calendar entries.
Courts view reconstructed time records with skepticism. Memory fades, and reconstructed entries tend to inflate time spent. If opposing counsel can demonstrate that your records were created after the fact, expect significant reductions.
For statutory fee matters, implement these practices:
Track time in six-minute increments: The six-minute increment (0.1 hours) has become the legal billing standard. Courts expect this level of granularity. Billing in quarter-hour or half-hour minimums invites challenges.
Describe tasks specifically: Instead of “Legal research,” write “Research federal case law on qualified immunity defense for motion to dismiss, focusing on Ninth Circuit standards.” The description should allow a reviewer to understand what you did, why you did it, and whether the time spent was reasonable.
Record time daily: Don’t wait until week’s end to log your time. Daily entry is more accurate and creates contemporaneous records that withstand scrutiny.
Separate distinct tasks: Don’t combine “Review documents, draft letter to opposing counsel, and telephone conference with client” into a single 2.0-hour entry. Break each task into its own entry with its own time allocation.
Note who performed the work: Paralegal time should be billed at paralegal rates. Senior partner time should be billed at senior partner rates. Misattributing work undermines credibility.
Maintain Supporting Documentation
Beyond time records, your fee application may need:
- Fee agreements: The engagement letter showing your agreed rate and billing terms
- Attorney qualifications: Resumes or declarations establishing experience and expertise
- Rate evidence: Affidavits from other attorneys confirming your rate is consistent with market rates
- Task summaries: For complex matters, a summary organizing time by category (discovery, motion practice, trial preparation) helps courts evaluate reasonableness
- Billing judgment documentation: Notes showing that you voluntarily reduced or excluded time before submitting your fee request
Apply Billing Judgment Before Submitting
“Billing judgment” refers to the practice of reviewing your time records and voluntarily reducing or eliminating entries that are excessive, duplicative, or otherwise non-recoverable.
Courts expect lawyers to exercise billing judgment. Fee petitions that include every minute billed, without any self-editing, suggest either poor judgment or padding. Demonstrating that you’ve already reduced your request enhances credibility and may forestall larger court-imposed reductions.
Document your billing judgment process. Create a worksheet showing total hours billed, voluntary reductions, and the net hours claimed. Explain why specific entries were reduced or eliminated.
Technology Solutions for Statutory Fee Management
Managing statutory fee matters efficiently requires billing software that can accommodate non-traditional workflows. Here’s what to look for:
Flexible Matter Configuration
Your software should allow you to configure matters with different billing types. A probate matter might be set up as a percentage-fee case where you track time for internal purposes and potential extraordinary fee applications, but don’t generate traditional invoices.
A conservatorship matter might use hourly billing with a flag indicating court approval is required before payment. A fee-shifting case might track time at your standard rates while also maintaining a separate “fee petition rate” for lodestar calculations.
LeanLaw’s matter management allows this flexibility, treating each matter as a separate entity with its own billing configuration.
Robust Time Tracking Without Automatic Invoicing
For many statutory fee matters, you need to track time meticulously without automatically generating invoices. The billing process is decoupled—you accumulate time entries, but the “invoice” is actually a fee petition submitted to the court.
Look for software that lets you capture time entries, run detailed time reports, and export data for fee petitions without forcing the time into an invoice workflow.
Detailed Reporting Capabilities
When preparing fee petitions, you need reports that organize time by:
- Timekeeper (with rate information for each)
- Task category
- Date range
- Narrative description
The ability to generate custom reports showing time entries in the format courts require—with subtotals, rate calculations, and summary statistics—saves hours of manual preparation.
Trust Accounting for Court-Supervised Funds
Many statutory fee matters involve trust accounting complexities. Estate funds are held pending distribution. Conservatorship accounts require strict segregation. Court-approved fees must be paid from specific accounts.
Your billing software should maintain proper trust accounting records and generate the reconciliation reports courts may require.
Practice-Specific Strategies
Different statutory fee contexts require tailored approaches. Here’s how to optimize your processes for the most common practice areas:
Probate Matters
Maximize efficiency: Since statutory fees are fixed regardless of time spent, every hour you save is effectively increased compensation. Build template documents, create checklists, and leverage technology to streamline routine tasks.
Track time anyway: Even though “ordinary” fees are formula-based, you may need time records if you’re seeking extraordinary fees or defending against a fee objection. Track time as you would for any hourly matter—you can always choose not to use the records, but you can’t create them retroactively.
Identify extraordinary services early: Know what counts as extraordinary in your jurisdiction. Complex tax matters, litigation, contested proceedings, and unusual asset management often justify additional fees—but you need to document these services specifically.
Bill promptly when authorized: Once the court issues its order confirming statutory fees, don’t delay collecting. Your fee is due from the estate, and delays can complicate distributions or create collection challenges.
Conservatorship and Guardianship
Understand your jurisdiction’s requirements: Some courts have published fee schedules; others require detailed billing submissions. Some approve fees as part of regular accounting reviews; others require separate fee petitions. Know the rules before you start the case.
Communicate with the court: In ongoing conservatorship matters, establish expectations with the court about billing frequency and format. Some judges prefer quarterly fee submissions; others want annual accountings.
Document everything: Conservatorship matters attract scrutiny. Family members, public guardians, and court investigators may review your billing. Detailed contemporaneous records protect you from accusations of overcharging a vulnerable person’s estate.
Bill at appropriate rates for appropriate tasks: If a paralegal can handle routine correspondence, don’t have a partner do it. Courts will reduce fees where senior attorneys perform tasks that junior staff should handle.
Fee-Shifting Cases
Track time from day one with fee petition in mind: Every time entry may eventually appear in a fee petition reviewed by opposing counsel and a judge. Write entries as if they’ll be read by a hostile audience—because they will be.
Maintain separate running totals by claim: If your case involves multiple claims, some successful and some not, you may need to identify which time relates to which claims. Build this tracking into your matter management from the start.
Exercise billing judgment throughout: Don’t wait until the fee petition to apply billing judgment. Regularly review accumulated time and eliminate or reduce entries that won’t withstand scrutiny.
Prepare for the fee fight: Fee petitions in contested cases often become mini-litigation of their own. Budget time and resources for responding to objections, providing supporting declarations, and potentially arguing the fee motion.
Consider fee petition costs: Time spent preparing the fee petition is generally recoverable. Track this time carefully—it’s compensable work.
Common Pitfalls and How to Avoid Them
Pitfall 1: Failing to Track Time on Formula-Based Matters
The problem: You’re handling a probate matter with statutory fees. Since your fee is determined by estate value, not hours worked, you don’t bother tracking time.
Why it hurts: When you seek extraordinary fees for complex tax work, you have no records to support the request. When a beneficiary objects to your fee, you have no documentation showing what you actually did. You’ve also lost valuable data for pricing future matters and evaluating profitability.
The solution: Track time on all matters, regardless of billing type. You can always choose not to use the records, but you can’t create them after the fact.
Pitfall 2: Block Billing
The problem: Your time entries combine multiple tasks: “Review and respond to discovery requests, draft letter to client, telephone conference with expert witness (3.5 hours).”
Why it hurts: Courts can’t evaluate whether the time is reasonable because they can’t determine how long each task took. Many courts automatically reduce block-billed entries by 20-30%. Opposing counsel will specifically target block billing in fee objections.
The solution: Separate each task into its own entry with its own time allocation. It takes slightly longer to record but prevents larger reductions later.
Pitfall 3: Vague Task Descriptions
The problem: Entries like “Research,” “Trial prep,” or “Document review” provide no meaningful information.
Why it hurts: Courts may disallow time they can’t evaluate. Opposing counsel will argue that vague descriptions suggest padding or lack of genuine work.
The solution: Describe tasks specifically: “Research Ninth Circuit case law on summary judgment standard for First Amendment retaliation claims in employment context, identifying key precedents from 2020-2024.”
Pitfall 4: Failing to Exercise Billing Judgment
The problem: Your fee petition includes every hour you tracked, including time on unsuccessful motion practice, excessive research, and duplicative review by multiple attorneys.
Why it hurts: Courts expect attorneys to self-edit. Submitting unreduced records suggests poor judgment and invites larger reductions. You look like you’re trying to get away with something.
The solution: Review your records before submission and voluntarily eliminate or reduce questionable entries. Document your billing judgment process to demonstrate you’ve already been reasonable.
Pitfall 5: Ignoring Local Rules and Customs
The problem: You prepare fee petitions the way you’ve always done them, without checking whether this court has specific requirements.
Why it hurts: Different courts have different expectations for fee applications. Some require specific forms. Some limit page length. Some require declarations from other attorneys regarding rate reasonableness. Failure to comply can result in denial or delay.
The solution: Research local rules and customs before preparing fee petitions. Talk to attorneys who regularly practice before that court. Check for pattern forms or standing orders.
The Bottom Line
Statutory fee matters require a different mindset than traditional billing. Your compensation may be determined by formula, court discretion, or contested litigation rather than your client’s agreement to pay your invoices. But the foundation remains the same: meticulous documentation of the work you perform.
Whether you’re managing a probate estate, shepherding a conservatorship through court oversight, or fighting for fee recovery in a civil rights case, the attorneys who get paid fairly are those who:
- Track time contemporaneously and with specificity
- Understand the fee determination standards that apply
- Exercise billing judgment to eliminate non-recoverable time
- Prepare fee applications that anticipate court scrutiny
- Use technology that accommodates non-traditional billing workflows
The firms that treat statutory fee matters like any other billing—without adapting to the unique requirements—consistently leave money on the table. Worse, they expose themselves to fee challenges, court criticism, and ethics complaints.
Investing in proper systems and processes for statutory fee management isn’t just about compliance. It’s about ensuring you get paid fairly for the valuable work you do on behalf of clients who often can’t advocate for themselves.
Ready to streamline your firm’s billing across all practice areas? Schedule a demo with LeanLaw to see how integrated time tracking, flexible matter management, and robust reporting can support your statutory fee practice.
Frequently Asked Questions
Q: Should I track time on probate matters even though fees are statutory?
A: Absolutely. While your ordinary fee is formula-based, you may need time records to support extraordinary fee requests, defend against objections, evaluate matter profitability, and price future engagements. The time investment in tracking is minimal compared to the protection it provides.
Q: What happens if the court reduces my fee request?
A: Court-imposed reductions are common, especially in contested fee-shifting cases. Prepare by exercising billing judgment before submission (reducing obviously excessive entries), supporting your rate with market evidence, organizing your application clearly, and anticipating objections. If the reduction seems unjust, you may have grounds to appeal or request reconsideration depending on jurisdiction.
Q: Can I bill for time spent preparing a fee petition?
A: Generally, yes. Time spent preparing fee applications is typically compensable in fee-shifting cases. Track this time separately and include it in your petition with appropriate descriptions. The same rules of reasonableness apply—don’t spend 40 hours preparing a petition for a $10,000 fee award.
Q: How do I handle fee agreements in statutory fee cases?
A: Your engagement letter should clearly explain the statutory fee structure. For probate, explain that fees are set by law and calculated as a percentage of estate value. For court-approval matters, explain that your hourly rate is subject to court review. For fee-shifting cases, explain the contingency or hourly arrangement with the client and how it interacts with potential fee awards from the opposing party.
Q: What’s the difference between “ordinary” and “extraordinary” probate fees?
A: Ordinary fees cover the standard work of estate administration: filing petitions, notifying creditors, preparing inventories, obtaining court orders for distribution. Extraordinary fees compensate for work beyond the ordinary: contested proceedings, complex tax matters, unusual asset management, litigation with third parties. Extraordinary fees require court approval and must be supported by detailed documentation.
Q: How detailed should my time entries be for lodestar purposes?
A: Very detailed. Each entry should identify the specific task performed, the reason for the task, and enough context to allow a reviewer to assess whether the time was reasonable. Bad: “Research (2.0).” Good: “Research Ninth Circuit qualified immunity precedents for reply brief addressing newly-raised argument regarding clearly established law (1.8).”
Q: Do I need to submit actual invoices for court-approved fee matters?
A: Requirements vary by jurisdiction and matter type. Some courts require only a fee petition with summary information. Others want detailed billing records resembling invoices. Check local rules and ask experienced practitioners about expectations in your court.
Q: How should I handle fee disputes with conservatees’ family members?
A: Family dynamics often create fee challenges in conservatorship matters. Document your work carefully, communicate regularly about fees incurred, and obtain court approval promptly. If disputes arise, the court order approving your fee is your protection. Consider whether ongoing disputes warrant additional measures like more frequent fee submissions or pre-approval of anticipated work.
Q: Can the judge award me more than I requested?
A: Extremely unlikely. While courts have discretion to adjust fee awards, they virtually never award more than requested. If anything, your request represents the ceiling of your potential recovery.
Q: What software features help manage statutory fee matters?
A: Look for flexible matter configuration (supporting different billing types per matter), robust time tracking without automatic invoicing, detailed custom reporting, and proper trust accounting for court-supervised funds. Integration with QuickBooks or other accounting software helps manage the financial complexity of these matters.
Sources
- California Probate Code §§ 10810-10813, 2640-2647
- North Carolina General Statute § 28A-15-1
- Florida Statutes § 733.6171
- Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469 (Tex. 2019)
- Hensley v. Eckerhart, 461 U.S. 424 (1983)
- Karton v. Ari Design & Construction, Inc., 61 Cal.App.5th 734 (2021)
- National Consumer Law Center, “15 Blunders in Seeking an Attorney Fee Award”
- American Bar Association Model Rules of Professional Conduct, Rule 1.5
- Nolo, “Probate Lawyers’ Fees and Billing”
- Iowa Legal Aid, “Attorney, Court, and Guardianship or Conservatorship Fees”
