Probate FAQs

Before contacting a probate attorney it’s helpful to understand the basics of probate and estate administration. To help and guide clients and their families, we have compiled the following Frequently Asked Questions (FAQs) on probate, attorney fees, and related costs.

Who Does The Probate Lawyer Represent?

If you are considering hiring a probate attorney, it helps to understand what they can actually do for you.

A probate attorney represents and advises the personal representative of the estate (either the executor or administrator). If there is a will, the personal representative is referred to as the executor. If the decedent dies without a will, or intestate, the court appoints the personal representative, who is referred to as the administrator.

A personal representative is not necessarily a lawyer – for instance, a decedent might choose a family member as executor, or the court may appoint the spouse of a decedent as the administrator. If the personal representative lacks experience navigating legal processes, the services of a probate attorney can be invaluable. They can assist the personal representative by filing court documents, advising on legal duties, gathering and valuing assets, addressing creditor claims, and guiding distribution to heirs.

It should be noted that a probate attorney does not represent the estate itself, nor the individual heirs or beneficiaries. Interests can diverge in a probate proceeding, potentially creating conflict. In such a situation, the heir or beneficiary would need to hire their own attorney to protect their interests.

What is Probate?

The word probate stems from the Latin probare, which means “to prove.” Traditionally, therefore, probate proceedings refer to the process of “proving” a will before the court.

Nowadays, probate is understood in a much broader sense, and covers the entire process of court-supervised administration of a decedent’s estate. This can involve:

proving the validity of a decedent’s will (if one exists);
the appointment of the personal representative of the estate;
collecting, safeguarding, and valuing estate assets, including digital assets;
assessing claims against the estate, paying debts, taxes, and administration expenses; and
distributing the assets of the estate in accordance with the will (or if there is no will, according to law)

Do You Need A Lawyer To Begin Probate?

The simple answer is No, you do not need a lawyer to begin probate.

However, probate involves strict court rules, deadlines, detailed accounting, and fiduciary obligations for which a personal representative may be held personally responsible. Due to these and the inherent complexity of probate proceedings, as well as to minimize personal liability, many personal representatives choose to hire a probate attorney.

Who Pays The Probate Attorney?

While it may be the personal representative who retains the probate attorney, the services of the probate attorney are retained specifically to assist the personal representative in their capacity as such, and the administration of the estate. The attorney’s fees are therefore usually paid for by the estate as a valid legal cost. In fact, many probate attorneys advance costs with reimbursement from the estate at the close of probate.

This means that the Personal Representative is not personally responsible for attorney’s fees – except perhaps in cases of misconduct, when the Personal Representative exceeds their fiduciary duties or acts against the interests of the estate.

How Much Does A Probate Attorney Cost?

In California, there is a cap on how much a probate attorney can charge. For “ordinary services,” the maximum fee is calculated as a percentage based on the value of the estate accounted for, before deducting mortgages or other debts (Probate Code Section 10810).

“Ordinary services” include routine administration tasks such as collecting and safeguarding estate assets, paying debts, filing standard court documents, and incidental costs like photocopies, postage, making local calls, and clerical work.

The maximum fees for ordinary services are illustrated below, based on estate value:

4% for the first one hundred thousand dollars ($100,000);
3% for the next one hundred thousand dollars ($100,000);
2% for the next eight hundred thousand dollars ($800,000);
1% for the next nine million dollars ($9,000,000);
½ of 1% of the next fifteen million dollars ($15,000,000); and
For all amounts above twenty-five million dollars ($25,000,000), a reasonable amount to be determined by the court.

For example, if an estate is valued at $1,200,000, under the statutory fee schedule illustrated above, the probate attorney’s maximum fee would be $25,000, calculated as follows:

4% of the first $100,000 = $4,000
3% of the next $100,000 = $3,000
2% of the next $800,000 = $16,000
1% of the remaining $200,000 = $2,000

If, however, the probate attorney performs extraordinary services – such as selling real estate, defending a dispute, operating a decedent’s business, or obtaining a loan to pay estate debts (in other words, outside the routine administration tasks of estate management), additional compensation may be requested.

Such compensation for extraordinary services must be approved by the court, the amount for which is determined based on the time spent, the difficulty of the task, and the results achieved.

Can The Attorney Double Their Fee By Acting As the Executor and Attorney?

Personal Representatives are also entitled to fees for their services, and their fees are calculated using the same formula used for attorneys. (Probate Code Section 10800). Personal Representatives, however, have the option of waiving or reducing their compensation.

But this leads to the next logical question – if the Personal Representative is also acting as the probate attorney, does that mean they can double their fees?

According to California Probate Code 10804, such a person occupying a dual role may only be compensated for their services as a Personal Representative. If they wish to be compensated separately for their legal services, such compensation must first be approved by the court, if it is found that the arrangement is to the advantage, benefit and best interests of the decedent’s estate.