Probate Attorney’s Fees and Court Costs

Probate fees (e.g., attorney’s fees and executor’s fees) are set by California’s Probate Code §10810. The statutory fees prescribed by §10810 are based on the value of the estate, as determined during the probate process. The value of the estate is generally determined by the inventory conducted by the estate’s executor, and appraisers designated by the court.

Unfortunately, in making the valuation, the court does not consider the debts of the estate to offset the gross valuation, and thus determines the fees based upon just the gross valuation of the assets in probate. For example, if a house is appraised at $500,000 but has an outstanding mortgage of $300,000, the house is still valued at $500,000 for the purposes of calculating statutory probate fees.

Statutory probate fees under Cal. Prob. Code §10810 are as follows:

4% of the first $100,000 of the estate
3% of the next $100,000
2% of the next $800,000
1% of the next $9,000,000
0.5% of the next $15,000,000

*Note that the above-referenced calculations may have to be done twice: once to calculate the attorney’s statutory fee and once to calculate the executor’s statutory fee. See the example calculations below.

SHOULD THE EXECUTOR ACCEPT THE FEES OR WAIVE THEM?

Often the personal representative will be an heir or beneficiary of the estate and will elect to forego the compensation. Let’s take a quick look at why this might be. Let’s say Jane Doe survives her husband, John Doe, and is the sole beneficiary of his $500,000 probate estate. If Jane Doe accepts compensation in the amount of $13,000 as the executor of John’s estate, in general, Jane just incurred $13,000 of taxable income. However, if Jane foregoes compensation as executor, she will receive the entire inheritance from her husband income tax free. The personal representative must examine whether any negative income tax impact will outweigh the gratification of being paid to do the job. The personal representative should sit down with a tax professional to crunch the numbers and figure out which options make the most fiscal sense.

PROBATE STATUTORY FEES AND COURT COST

BASED ON THE GROSS VALUE OF AN ESTATE

$100,000 = $4,000 (But note: an estate of this size can likely avoid probate; Contact us for details)
$200,000 = $7,000
$300,000 = $9,000
$400,000 = $11,000
$500,000 = $13,000
$600,000 = $15,000
$700,000 = $17,000
$800,000 = $19,000
$900,000 = $21,000
$1 Million = $23,000

The best thing is to avoid probate by creating a living trust. We not only specialize in probate, but also estate planning

and can guide you and your family on how to set this up.