August 24, 2017

Probate Fees

An attorney's ordinary compensation, or statutory fee, for representing a personal representative in a probate case is determined by the estate's value. Estate of Hilton (1996) 44 Cal.App.4th 890, 894-915. For example, if the estate is valued at $400,000, the attorney's ordinary compensation is $11,000. The multiplier is a percentage of the estate, i.e. 4% of the first $100,000, 3% of the next $100,000 and 2% of the next $800,000.

Ordinary compensation is payment for typical services rendered in a probate, e.g. appointment of the personal representative, preparation of the inventory and appraisal, payment of creditors, closing of the estate, etc. Extraordinary compensation can be awarded for certain services, e.g. selling estate property (quite common in probates involving real estate). Extraordinary compensation is based off the attorney's hourly rate.

If "there are two or more attorneys for the personal representative, the attorney’s compensation shall be apportioned among the attorneys by the court according to the services actually rendered by each attorney or as agreed to by the attorneys." Probate Code § 10814.

In a recent unpublished appellate decision, an attorney was not permitted to collect the full statutory fee because other attorneys had worked on the case, but did not request their portion of the statutory fee when probate concluded. 

In this case, Attorney A had assisted with the appointment of the initial personal representative. Attorney A later sought leave to withdraw. Attorney B became counsel of record and "prepared and obtained the estate's Employer Identification Number, prepared and filed forms with the Internal Revenue Service, researched title to the estate's real property, and prepared and filed a "Final" inventory and appraisal." Attorney B later filed a motion to be relieved as counsel. Attorney C then became counsel of record until probate was concluded.

Due to an unconventional method for closing the estate, Attorney A and Attorney C did not request a portion of the statutory fee. Instead, Attorney B claimed that he was entitled to the full fee. The trial court disagreed and awarded Attorney B 50% of the statutory fee. This was upheld on appeal.