August 28, 2009

Probate Fees

For probate, the attorney and executor fees are set by statute. Prob C §§ 10800, 10810. At probate's conclusion, the Superior Court will award compensation as follows:

Four percent of the first $100,000 of the estate,
Three percent of the next $100,000,
Two percent of the next $800,000,
One percent of the next $9,000,000, and
One-half percent of the next $15,000,000.
For estates larger than $25,000,000, the court will determine the fee for the amount that is greater than $25,000,000.

For example a $400,000 estate would cost $22,000 in fees ($11,000 each for the attorney and executor). Additional costs include appraisal, publication and filing fees that typically amount to $1,000 to $3,000.

Furthermore, the fees for both the attorney and executor may go higher for extraordinary services such as selling a house, defending a will contest, or litigating a matter. Prob C § 10811.

What is particularly important about the probate value calculation is that encumbrances, such as a mortgage, are not included in the probate calculation. Prob C § 10810(b). Thus, if the decedent (the dead person) had a house worth $500,000 on the date of death but had a mortgage of $300,000 on the property, the probate estate would be valued at $500,000 not $200,000. This is a significant difference because the attorney fee for $500,000 is $13,000 while the attorney fee for $200,000 is $7,000.