How Attorney Fees are Calculated in a Probate in California


Attorney fees are pretty much standard in a probate case where everything has occurred as planned. This means that there was no litigation. No objections. No contest. No extraordinary work was performed by the attorney.

Know that there is a difference between attorney fees and costs. A probate case has both. Costs are not attorney fees. Costs are payment of items due to vendors that performed work in the probate or the cost for the court filing fee. The cost to open a probate is $465 in the filing fee. This is the same fee again to close a probate. There are other attendant costs like publication costs, probate referee (appraisal), bond premiums and so on.

Attorney fees in a probate are a commission based on the inventory value of the probate. The court ordered probate referee values the assets that being probated (conducts an appraisal) or if the assets are straight cash then the personal representative can do the cash valuation. The valuation of the probate assets is completed on an Inventory and Appraisal form using attachments. Attachment 1 is straight cash and attachment 2 is non-cash assets valued by the probate referee. A completed Inventory and Appraisal starts the basis for the attorney fee calculation.

The California Probate Code awards the attorney fees based on this simple formula:

4% of the first $100,000 in appraised assets on the Inventory and Appraisal then it is

3% of the next $100,000 and then it is

2% of the next $100,000 up to $800,000 and then this percentage scale goes downward from 1% to the next $9,000,000.00.

If you want to see the entire scale, see California Probate Code Section 10810 and subsequent sections.

But for simplicity, let’s say that we are only probating a house in Southern California. And the probate referee completed the Inventory and Appraisal and the house at the date of the decedent’s death was valued at $550,000. This is the figure that determines the attorney fees.

Of course if the house sells in a probate proceeding, for more or less than the appraised value on the Inventory and Appraisal, the code has adjustments upward and downward based on what happened. But for simplicity, let’s say the house was not sold.

The code would provide that the attorney fee would be $4,000 + $3,000 + $2,000 + $2,000 + $2,000 + $1,000 for a total of $14,000. This includes all of the services provided by the attorney in the probate that is non-contested and with no extraordinary work performed. Most probates seem to be ordinary and routine and not contested. So this fee encompasses the preparation of the paperwork, filing of the paperwork, assisting the client with the probate process, making all court appearances and closing the probate.

This fee does not include any costs advanced by the attorney. Those costs still need to be paid as a reimbursement back to the attorney or law firm that advanced the cost.

Now then the personal representative that is appointed by the court to handle the probate (either as the Executor or Administrator) is also entitled to the same fee as the attorney calculated on the same basis. This fee to the personal representative comes from the estate funds and is taxable. Some personal representatives agree to waive or decline to take this fee.

A typical probate costs about $14,000 in attorney fees (of course based on the average value of a house in California)! This should make you mad. And if you are alive and well, setting up a trust can avoid these fees and make it easier for your loved ones. If it is too late, then locate a probate attorney that can operate quickly and efficiently so you can get in and out of probate within a year if the court will let you.

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