To the question of “how much does a probate attorney cost?” – the answer, when the probate is to be conducted in California, simple enough.
Probate attorney fees in California are determined by statute and are set out in Probate Code §10810.
These fees are calculated as a percentage of the gross value of the estate using a sliding scale, and apply to successive value brackets of the estate value. For instance:
- 4% on the first $100,000
- 3% on the next $100,000
- 2% on the next $800,000
- 1% on the next $9,000,000
- ½ of 1% on the next $15,000,000
For any amounts exceeding $25M, attorney fees are a reasonable amount to be determined by the court.
This is a straightforward calculation of fees that sets California apart from other states in that it makes legal fees in probate predictable.
But there is a caveat here – this provision only applies to ordinary probate services. Potentially, legal fees can exceed these values if the probate attorney is also brought on to perform “extraordinary services.”
Ordinary vs. Extraordinary Probate Work
There is no definitive definition of what constitutes “ordinary” vs “extraordinary” probate work. But traditionally, ordinary probate services constitute services rendered that are routine to probate administration, or moving an estate from initial filing of the petition to its final distribution.
Ordinary probate services may include:
- Meeting or consultation with the client regarding the will or petition for probate
- Preparing, filing and service of the various petitions in probate including: petition for probate, letters of administration, authority under the Independent Administration of Estates Act (IAEA), family allowance, fees, appointment of successor representative, administration of the estate, etc.
- Preparing, service and publication of notices
- Preparing required supplements or declarations
- Preparing inventory or appraisal
- Preparing interim accounts and reports
- Handling debts and creditor claims
- Supervising the distribution, preparation of receipts for distribution, and discharge of the representative
- All other routine tasks and expenses
“Extraordinary services,” on the other hand, cover all other services not considered “ordinary.” This is important because while extraordinary services are not exactly defined, California’s Probate Code §10811 expressly authorizes the court to allow additional compensation – on top of the §10810 statutory fees – for the attorneys performing extraordinary services.
Regardless, the Probate Code still preserves judicial oversight over additional fees for extraordinary services by providing that it be in an amount that the court determines as “just and reasonable.”
Common Triggers for “Extraordinary Fees”
Though we don’t have a definition for extraordinary probate services, there are a few that have been recognized as such.
Under the California Rules of Court, Rule 7.703(b) lists the following as examples of extraordinary services by an attorney:
- Legal services in connection with the sale of property held in the estate;
- Services to secure a loan to pay estate debts;
- Litigation undertaken by benefit the estate or to protect its interests;
- Defense of the personal representative’s account;
- Defense of a will contested after its admission to probate;
- Successful defense of a will contested before its admission to probate;
- Successful defense of a personal representative in a removal proceeding;
- Extraordinary efforts to locate estate assets;
- Litigation in support of attorney’s request for extraordinary compensation, where prior compensation awards are not adequate compensation under all the circumstances;
- Coordination of ancillary administration; and
- Accounting for a deceased, incapacitated, or absconded personal representative under Probate Code section 10953
In addition, extraordinary services may include the services of a paralegal acting under the attorney’s direction and supervision. An attorney who undertakes tax work may also be payable for extraordinary compensation.
The list above is not exhaustive, and there are a number of other possibilities where the probate attorney may be asked to perform legal services that are not common to simple probate work. In any case, what is eventually justifies payment of extraordinary compensation are the records of those services.
Court Approval of Extraordinary Fees is based on records of those services
Extraordinary fees are different from ordinary probate work, which are determined based on a percentage of the value of the estate. Extraordinary fees are, by comparison, determined based on the scope, extent and complexity of the work performed.
When a petition for extraordinary compensation is filed, it must include a statement of the following:
- The nature and difficulty of the tasks performed
- The results achieved
- The benefit of the service to the estate
- A specification of the amount requested for each category of services performed
- The hourly rate of the person performing the services and the hours spent on each
- A detailed description of the services performed
- The size of the estate
- The experience and qualifications of the person performing the service
This means that, over and above the statutory fees payable to the probate attorney, any extraordinary compensation payable to the attorney must be justified and supported by documentation. Even then, the court has the final say on what the amount will be, which shall be “just and reasonable.”
Transparency and Predictability
All things considered, the California Probate Code has done its best in providing predictability to probate attorney fees, and for any additional extraordinary expenses, transparency.
There are sufficient safeguards put in place to hopefully encourage personal representatives to seek, and benefit from, professional legal services when taking on the responsibility of administering an estate.
Every estate is different. Reach out to schedule a consultation so we can guide you through potential costs and the probate process