Before calling a probate attorney it’s helpful to understand the basics of probate and estate administration. To help clients become more informed we provide the following FAQs on probate, attorney fees and related costs.
Who Does The Probate Lawyer Represent?
The probate attorney represents the personal representative of the estate. If a will is present the personal representative is the executor of the estate. If the decedent dies without a will (ie. intestate) the personal representative is the administrator.
What is Probate?
In the limited sense probate refers to proving a decedent’s will before a court. However, today probate is understood in a broader sense as the process of court-supervised administration of the decedent’s estate. The process involves proving the validity of the decedent’s will, appointing the personal representative of the estate, assembling the decedent’s assets, paying debts, and distributing assets according to a will or state law if no will exists.
Do You Need A Lawyer To Begin Probate?
No, but due to deadlines, risk of personal liability, and the complexity of probate proceedings many personal representatives choose to hire a probate attorney.
Who Pays The Probate Attorney?
The estate at the end of the probate case. While the personal representative of the estate retains the probate attorney, the attorney’s compensation comes from the estate of the decedent. Moreover, many probate attorneys advance costs with reimbursement from the estate at the close of probate.
How Much Does A Probate Attorney Cost?
California statute establishes the maximum amount a probate attorney can charge for “ordinary services” in probate administration. The maximum amount is stated as a percentage of the value of the estate before deductions for mortgages or debt obligations. The formula for calculating this maximum fee is found in Probate Code Section 10810:
- 4% of the first one hundred thousand dollars ($100,000), plus
- 3% of the next one hundred thousand dollars ($100,000), plus
- 2% of the next eight hundred thousand dollars ($800,000), plus
- 1% of the next nine million dollars ($9,000,000), plus
- ½ of 1% of the next fifteen million dollars ($15,000,000).
The maximum fee in Probate Code Section 10810 is for “ordinary services.” “Extraordinary services” may entitle a probate attorney to additional compensation subject to court approval.
What Are Extraordinary Services?
Extraordinary services may include:
- Selling real estate
- Litigation involving estate property
- Continuing decedent’s business
- Obtaining a loan to pay estate debts
Is The Executor Entitled To A Fee?
Yes. The Executor is entitled to the same maximum statutory fee. However, the Executor has the option of waiving or reducing their compensation.
Can The Attorney Double Their Fee By Acting As the Executor and Attorney?
Usually not. Probate Code Section 10804 allows an attorney who is acting as the personal representative to only collect the personal representative’s compensation, and disallows compensation for legal services unless the court approves in advance and finds that such dual compensation is to the advantage, benefit and best interest of the estate.
Is An Executor Liable For Mistakes?
Yes. The Executor can be held personally liable for certain mistakes in the probate. To minimize liability many Executors choose to hire a probate attorney.
How Can I Get Information On A Probate Case?
Visit the Sacramento Superior Court’s Public Case Access System. You can view information about case participants, events and records where available.