“Probate” is one of those elusive terms that only lawyers seem to know about (and few of us at that!). It’s actually a term that stems from a Latin word that means “to prove.” When you or a loved one leaves a will, someone has to file a petition with the court to prove that the will is valid. The court has a complicated web of hoops one must go through to prove that the document was authentic, legally sound and sufficiently precise.
Probate is also the process used when one dies without any form of estate (without a will or trust). In that case, the court’s job is to authenticate who the legal intestate heirs to the estate will be. It’s possible, and almost always preferable, to avoid probate by putting your estate into a living trust. See Will or Trust – Which is Better?
Attorneys in our office help clients with these issues every day in numerous ways:
- We counsel with family members in the planning stages to avoid probate and also immediately after the passing of a loved one.
- We go to court with clients or on their behalf when a probate is necessary and handle the paperwork and procedural intricacies of the court labrynth.
- We help those appointed by the court with administrative tasks such as selling property, paying taxes, etc. (these are additional “duties” that require additional fees)
- We help spouses claim the community property of their lost husband/wife.
- We help distant relatives marshall the assets of a family member who had no children or close family.
Probate can be time consuming and costly. In these cases, some fees are paid to attorneys, some are paid to the court, and some are paid to outsiders. Here is a quick breakdown:
In every California probate, the attorney is awarded a “statutory fee” – in other words, our payment in attorney fees is based entirely on the fair market value of the assets in the decedent’s estate. It can be costly, since the statutory fee doesn’t take liabilities into account. So if a home has a fair market value of $600,000 and a remaining mortgage of $500,000, fees will still be based on the full $600,000 – not the $100,000 in equity. 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
- 5% on the next $15,000,000
- A reasonable fee thereafter
* See Cal Prob. Code § 10810 and § 10800 (fees) and § 10811 (extraordinary services)
Fees paid to the executor
The executor, sometimes called personal representative or administrator, is entitled to collect the same fee as the probate lawyer charges. Many times, 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.)
Fees paid to the court
- There is a fee payable to the superior Court for each probate 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 and additional motions at additional cost. Our duty is to help streamline and minimize these additional costs.
- You’ll also have to file a Notice of Probate in a newspaper. Per the rules of court, you are required to use only certain newspapers, and their charges will vary. We tell our clients to expect the notice to cost anywhere from $100 to $450.
Shocking but true: Example #1
Let’s say Uncle Bill was single, and died owning an $800,000 house, and there is a $400,000 mortgage on it. The statutory fee for BOTH the attorney and the executor would be $19,000 based on the full $800,000 value:
- 4% of the first $100k = $4,000
- + 3% of the next $100k = $3,000
- + 2% of the remaining $600,000 = $12,000
- Attorney fee: $19,000
- Executor fee: $19,000
- Total: $38,000 (lawyer + executor)
There’s no way around it. Every probate judge requires an administrator to file and “inventory and appraisal” of the decedent’s estate. This includes all assets owned by the decedent. 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).
Full Circle: Example #2
Here’s how the fees would add up on a simple $800,000 probate matter.
- $435 Court filing fee
- $300-1000 publication fee
- $500 appraisal fee
- $435 fee to file Petition for Final Distribution
- $19,000 attorney’s statutory fee (see above example under “statutory fee”)
- Possibly a $19,000 executor’s statutory fee
- Bond (a percentage of the estate determined by bonding company)- sometimes waived
Special circumstances or needs
The examples provide assume that everything in the process went smoothly without quirk or complication. If problems pop up, it will take extra money to deal with them. Par for the course in the legal world. 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. Maybe there were undiscovered credit card debts. For dealing with extra matters, the attorney and the personal representative are allowed to each charge “extraordinary fees” for dealing with the additional workload.
(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.)
CALIFORNIA STATUTORY PROBATE FEES AND COMMISSIONS
(PROBATE CODE SECTIONS 10800 & 10810)
*Gross Probate Estate – generally includes gross (not net) value of real estate, business interests,
investments, bank accounts, conservatorship accounts, brokerage accounts, personal property and household goods, but generally does not include retirement accounts, life insurance, or assets placed in living trusts
*Total Cost – Often, there are associated costs that include additional court filing fees, bonding and publication. Those expenses are dependent on the size of the estate and complexity of assets. Then numbers provided below are a rough estimate of what a family can expect to incur with a probate proceeding. If the estate is solvent, the money can be paid from the decedent’s assets.
|Gross Probate Estate*||Personal Rep’s Commission||Lawyer’s Fee||Court Fees
Fees @ 0.1%
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