How are Probate Fees Calculated in California?
One of the most common questions families ask after a loved one dies is: “How much will probate cost?”
In California, compensation for the attorney handling a probate and for the estate’s personal representative—sometimes called the “executor” or “administrator”—is generally calculated under a statutory percentage formula. Importantly, these fees are ordinarily paid from the probate estate after they are reviewed and approved by the probate judge.
California’s Statutory Probate Fee Schedule
For ordinary services, California Probate Code section 10810 establishes the following compensation schedule for a personal representative:
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 million;
0.5% of the next $15 million; and
A reasonable amount determined by the court for an estate valued above $25 million.
The attorney for the personal representative is generally entitled to compensation under the same percentage schedule pursuant to Probate Code section 10810.
This means there may be two separate statutory compensation awards: one for the personal representative and one for the personal representative’s attorney. A personal representative may choose to waive compensation, but the attorney’s compensation is separately calculated.
Examples of California Probate Fees
For an estate valued at $500,000, the statutory compensation would generally be calculated as follows:
4% of the first $100,000: $4,000
3% of the next $100,000: $3,000
2% of the remaining $300,000: $6,000
The resulting statutory compensation would be $13,000 for the attorney and potentially an additional $13,000 for the personal representative.
For an estate valued at $1 million, the statutory compensation would generally be:
4% of the first $100,000: $4,000
3% of the next $100,000: $3,000
2% of the next $800,000: $16,000
The resulting statutory compensation would be $23,000 for the attorney and potentially an additional $23,000 for the personal representative.
Fees are Based Primarily on the Gross Value of the Probate Estate
Statutory probate compensation is generally based on the value of the property included in the probate estate, together with certain receipts and gains during administration. The calculation is not ordinarily based on the estate’s net equity after subtracting debts.
For example, if a home valued at $800,000 is subject to a $500,000 mortgage, the home is generally included in the probate fee calculation at its appraised value of $800,000—not merely the $300,000 in equity.
California Rules of Court require a petition requesting statutory compensation to identify the compensation base and show how the requested amount was calculated.
Assets that pass outside probate—such as property held in a properly funded trust, accounts with valid beneficiary designations, and certain jointly owned property—are generally not included in the statutory probate fee calculation.
When are Probate Fees Paid?
Probate attorney fees and personal representative compensation are generally not paid at the beginning of the case. Instead, the attorney or personal representative normally files a petition asking the probate court to approve the requested compensation.
The probate judge reviews the petition and issues an order allowing the fees. Once the court approves the compensation, it is paid from assets belonging to the estate. The California Courts’ probate guidance similarly explains that these fees are generally paid from the estate and are usually paid near the end of the probate proceeding.
As a result, family members or beneficiaries ordinarily do not personally pay the statutory attorney fees from their own funds. The compensation is treated as an expense of administering the estate and is paid before the remaining estate property is distributed to the beneficiaries.
Some expenses—such as the initial court filing fee, publication costs, certified copies, or probate referee fees—may need to be advanced before the estate has accessible funds. Those properly incurred expenses can generally be reimbursed from the estate.
What are Extraordinary Probate Fees?
The statutory percentage compensates the attorney and personal representative for “ordinary” probate services. In some cases, additional work may qualify for extraordinary compensation.
Examples may include:
Probate litigation or a will contest;
Complicated real property transactions;
Operating or selling a decedent’s business;
Complex tax matters;
Locating concealed or difficult-to-find assets;
Defending the personal representative’s accounting; or
Handling unusually complicated creditor disputes.
Extraordinary fees are not automatic. They are discretionary and must be requested from, and approved by, the probate court. The judge determines whether the services were extraordinary and whether the requested compensation is reasonable.
Probate Costs are one Reason to Consider a Living Trust
Because California probate compensation is based largely on the gross value of the probate estate, fees can be substantial—particularly when the estate includes California real property.
A properly prepared and funded living trust can frequently allow trust assets to be administered without a formal probate proceeding. Avoiding probate may reduce court involvement, delay, and statutory probate fees. However, merely signing a trust is not enough. The person creating the trust must also properly transfer or coordinate assets with the trust.
An experienced California probate and estate-planning attorney can explain the likely costs of probate, determine which assets require court administration, and help families evaluate whether a trust-based estate plan is appropriate.