“Probate” comes from one of those Latin words that lawyers love to use. Basically it means “to prove.” When you leave a will, someone has to prove to a court that the will is valid. (It’s possible to avoid probate by putting your estate into a living trust. But I discussed that in several 2010 and 2011 blog articles.)
There are three key ways a California probate attorney like me helps clients:
- By consulting with family members
- By going to court with clients or on their behalf (and preparing all of the necessary court paperwork and consulting with the executor on a range of issues that may arise)
- By providing administrative help such as arranging for maintenance or sale of a property (note: this is not one of our “duties” so we bill extra for this service)
Some fees in probate cases are paid to us, some are paid to the court, and some are paid to outsiders. Here is a breakdown:
Fees paid to the Court
- There is a $395 fee payable to the Court for each petition you have to file. In simple probate cases you only have to file two petitions: the initial “Petition to Probate” the estate and a Petition for Final Distribution.
- For more complex cases, you may have to file additional petitions.
- You’ll also have to file a Notice of Probate in a newspaper. You are required to use only certain newspapers, and their charges will vary. Expect the notice to cost anywhere from $100 to $450.
Fees paid to the attorney
Our ordinary attorney’s fee -- called a “statutory” fee -- is based on the fair market value of the assets in the estate. The fee doesn’t take liabilities into account. The probate code establishes a sliding scale:
- 4% of the first $100,000
- 3% of the next $100,000
- 2% of the next $800,000
- 1% on the next $9,000,000
- 0.5% on the next $15,000,000
- A reasonable fee thereafter
Say the only asset in an estate is a $500,000 house, and there is a $400,000 mortgage on it. The statutory fee would be $13,000 based on the full $500,000 value:
- 4% of the first $100k = $4,000
- + 3% of the next $100k = $3,000
- + 2% of the remaining $300,000 = $6,000
- Total: $13,000
Fees paid to the executor
The executor is entitled to charge the same fee as the probate lawyer charges. Often the executor is a family member who will waive the fee. (Most family members start out saying “it’s my family; I’m not going to charge." But in many cases they change their minds after they see how much work is involved and that no one else is helping.)
All of the assets that the decedent owned need to be “inventoried” and “appraised”. The Court appoints the appraiser, whose fees are 0.1% of the value of the appraised assets (so in a $500,000 estate the appraisal fee would be $500).
Here’s how the fees would add up on a simple $500,000 probate case.
- $395 Court filing fee
- $100 publication fee
- $500 appraisal fee
- $395 fee to file Petition for Final Distribution
- $13,000 attorney's statutory fee (see above example under "statutory fee")
- Possibly a $13,000 executor’s statutory fee
- Total: $14,390 to $27,390
Special circumstances or needs
The above example assumes that everything goes smoothly. If problems pop up, it will take extra money to deal with them. For example, it may turn out that the decedent hadn’t filed any tax returns in years. Or it may be necessary to sell the real estate. For dealing with extra matters, the attorney and the executor are allowed to each charge “extraordinary fees.”
(The difference between “ordinary” services and “extraordinary” services is that the court gets to decide whether the “extraordinary” services were necessary or not and also whether the proposed fee for them is reasonable or not.).
Hiring an experienced probate attorney
If you need probate legal services, consider hiring my firm. Please ring my office at 650.325.8276.