For many people, the biggest concern they have when faced with the dilemma of whether or not they should hire a lawyer is the cost. Typically, lawyers charge by the hour. Should a case drag on for months, or even years, that means recurring invoices and costly legal expenses.
But in the area of probate, California has established a fee structure for probate attorneys that accomplishes something that one would think is impossible: it has made attorney fees predictable.
So, if you are a personal representative faced with the prospect of hiring a legal professional or not, you might be wondering how much a probate attorney will cost.
Predictable Probate Attorney Fees in California
California’s efforts to standardize legal fees in probate is encapsulated in California Probate Code §10810.
Under Probate Code §10810, the fee is calculated based on the gross value of the estate subject to probate. The statute provides a sliding scale that decreases as the estate value increases.
The formula works 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
- ½ of 1% on the next $15,000,000
- A reasonable amount to be determined by the court for all amounts above $25,000,000
These fees apply to what are considered “ordinary probate services” such as:
- Preparing and filing the petition for probate
- Providing notice to heirs and creditors
- Preparing inventory and appraisal of estate assets
- Coordinating with the probate referee
- Handling the identification and settlement of creditor claims
- Preparing the final accounting and petition for distribution
Sometimes, however, other legal issues might arise: litigation, tax disputes, or extraordinary asset management. These are classified as “extraordinary services,” and may involve additional compensation for the probate attorney, subject to court approval.
Legal Fees as Estate Administration Cost
A common misconception among personal representatives is that they must pay the attorney out of their own pockets. In California, however, probate attorney fees are payable out of the estate.
One crucial fact we can glean from this is that in California, attorney fees are considered legitimate expenses of estate administration.
Ultimately, the benefit of legal services, and the burden of paying for it, falls to the estate. But this is on a sliding scale based on the gross value of the estate, so that the fees are predictable and easily accounted for.
The Court as Gatekeeper
For high value estates valued upwards of $25,000,000, the fees are determined not by the lawyers but by the court.
But courts also serve as gatekeepers in another way: judicial oversight is required for the payment of attorney fees. That is, a probate attorney is prohibited from receiving any portion of their fee in advance unless there is a court order authorizing it.
Typically, the probate attorney may seek payment towards the end of probate, in the Petition for Final Distribution. The court reviews the work that the attorney did and ensures that the accounting is accurate before signing an order for the payment. Sometimes, if the probate process is taking a little too long, the attorney might seek partial payment through a Petition for an Allowance on Account. Regardless, court approval will still be required.
One might think, with these existing statutory fees and court oversight, that nobody trusts the lawyers to fix their own fees. But it’s not the lack of trust so much as these protections have been put in place to protect the estate and its beneficiaries. And the protections are designed so that non-lawyers will not hesitate to seek legal help when administering an estate.
These safeguards make it easier to ask for help—contact us to review your estate matters.