My father passed away over a year ago. Can an estate attorney (in Pennsylvania) include a non-probate TOD account in her fees?

Probate lawyers bill cases in several different ways. The billing should be spelled out in the engagement letter (contract) between the client and the lawyer. I don't know the laws in Pennsylvania, but in Ohio non-probate assets can be included in the calculation of attorney fees when using a percentage of the assets based billing method. Again, I don't know what your exact situation is or what the laws in Pennsylvania are. If you have questions you should consult a local probate attorney. Best Wishes.

I don't charge percentage fees anymore but I used to do so. The formula I used said "gross" too and by that I meant and the fee agreement would say, "gross" means "gross taxable as defined under federal estate tax law" or something like that. In other words, if the deceased had control over it up to the moment they died, then it was part of the gross taxable estate, and that was part of the percentage fee formula. So if that is the same notion it is not incorrect. I don't charge percentage anymore because people had a hard time understanding this and it was too much of a hassle. I also thought it was unfair to myself since nobody would show up and complain about the broker's percentage fees, seemed like only the lawyer caught grief over it. Anyways, I'm surviving just fine without this hassle and maybe in the future your lawyer can do the same. But if that was the bargain, you may have to stick with it.

You are going to need to consult a PA attorney, and perhaps one from the same county as the decedent. In Ohio, this practice varies from county to county. Some have fee schedules, some don't. Some want to exercise jurisdiction over trust settlement fees even outside of probate, some don't. Some of the formulas include the "federal gross taxable estate" (which would include POD, TOD and survivorship assets) and some don't. Some states (and counties) require written fee agreements and some don't. To figure out the local custom you'll need to pay for a consultation or second opinion with a local probate expert. However, if her fee is the usual 1% to 2% of assets, you need to ask yourself whether it is worth additional time, expense and aggravation to fight this when everything is about to wrap up.

I agree with the three earlier attorney comments and would like to add one more note: if your attorney had to submit a federal estate tax return, it is required to list all assets, both probate AND non-probate, so that is often why attorneys change for a percentage of the gross taxable estate, because it includes non-probate as well.