A probate lawyer’s fees for administering an estate in California are generally calculated using a statutory formula based on the estate’s total value. Attorney fees are generally the same as those of the personal representative.
- The attorney’s hourly rate does not determine statutory probate fees. Because California law sets fees, choosing an experienced probate firm can be more important than comparing hourly rates.
- Attorney fees are an administrative expense. They are generally paid before most other debts and distributions to beneficiaries.
- The estate generally pays attorney fees. As a result, the personal representative typically decides whether to hire an attorney using estate funds.
- Simplified procedures can reduce costs. Eligible estates may avoid formal probate and the need for attorney assistance, preserving more assets for beneficiaries.
California Probate Lawyer Fees: How Do They Work?
A probate lawyer’s compensation for administering an estate in California is generally calculated using a statutory fee schedule based on the estate’s total value before debts are paid. In other words, the larger the estate, the higher the attorney’s compensation typically will be.
The statutory fee schedule for a probate attorney assisting with estate administration is structured as follows:
- 4% on the first one hundred thousand dollars ($100,000)
- 3% on the next one hundred thousand dollars ($100,000)
- 2% on the next eight hundred thousand dollars ($800,000)
- 1% on the next nine million dollars ($9,000,000)
- 0.5% on the next fifteen million dollars ($15,000,000)
- For all amounts above $25 million, a reasonable amount to be determined by the court
***Fees for the attorney and personal representative are cumulative
A probate lawyer’s compensation for routine estate administration mirrors that of the personal representative (the executor or administrator). For example, if an executor is entitled to $50,000 in statutory compensation and hires a probate lawyer to assist with administration, the attorney would generally be entitled to the same amount.
Personal representatives sometimes waive their fees to preserve more of the estate for beneficiaries. However, doing so does not affect the probate lawyer’s entitlement to compensation. If a probate lawyer is hired to assist with estate administration, the attorney is generally entitled to compensation regardless of whether the personal representative chooses to receive a fee.
Although California probate attorney fees can be significant, they are generally determined by state law rather than a law firm’s usual hourly rates. This means an estate does not necessarily need to choose a probate lawyer based on the firm’s standard fee structure.
Whether a firm typically charges $500 or $1,000 per hour generally does not affect its statutory compensation for ordinary probate administration. Instead, compensation is based primarily on the estate’s value and, in some cases, on services performed beyond ordinary administration.
Ordinary Compensation vs. Extraordinary Compensation
A probate lawyer hired to provide ordinary estate administration services is entitled to compensation under California law. However, extraordinary compensation for services beyond ordinary administration is subject to court approval and is not guaranteed.
Generally, an attorney seeking extraordinary compensation must provide documentation showing the scope, nature, and value of the additional services performed. The court then considers the documentation and circumstances of the estate when determining whether additional compensation is warranted.
For example, if an estate is nearing insolvency, the court may consider the estate’s limited resources when deciding whether to award extraordinary compensation. The court may determine that available funds should instead be used to satisfy outstanding debts or be distributed to beneficiaries.
California law identifies specific services for which a probate lawyer may seek extraordinary compensation, including:
- Legal services in connection with the sale of property held in the estate;
- Services to secure a loan to pay estate debts;
- Litigation undertaken to 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.
What Are Examples of Ordinary and Extraordinary Probate Attorney Services? | |
Ordinary Probate Services | Extraordinary Probate Services |
Assisting with the assessment, processing, and payment of valid debts and routine estate expenses | Representing the estate in litigation involving a creditor dispute |
Gathering estate assets and preparing an inventory | Conducting extraordinary efforts to locate or recover estate assets, including forensic review of financial records and other documents |
Transferring title to real property to beneficiaries | Providing legal services related to the sale of estate real property |
Providing general administrative assistance to the personal representative | Defending the personal representative in litigation involving alleged fiduciary misconduct |
Preparing accountings for beneficiaries
| Handling unusually complex or contested accounting matters
|
Preparing petitions for appointment and final distribution
| Representing the estate in contested petitions or other unusually complex court proceedings
|
Note: A probate attorney may agree to perform extraordinary services on a contingency-fee basis if the agreement is in writing and complies with Business and Professions Code section 6147. The court must approve the agreement based on findings that the compensation is just and reasonable and that the agreement is beneficial to the estate and interested parties. Court approval is generally required before the attorney performs services under the agreement. | |
Important Note About California Probate Lawyer Fees
It’s important to recognize that the fees a probate attorney charges for administering an estate in California may be completely different from the usual fees they charge for handling other types of matters.
This is because an attorney’s fees for administering an estate are based on a statutory formula within the California Probate Code, whereas an attorney’s fees for most other matters are based on the individual rates they, or the law firm where they work, decided.
In practical terms, this means that even if an attorney’s fees seem relatively high for administering an estate, this does not necessarily mean their fees will also be high if hired to work on other types of matters. In the same vein, if the attorney’s fees for administering an estate appeared very modest, it does not mean their fees will be reasonable if they were to be hired to work on an entirely different case.
Outside of estate administration, probate attorneys typically adopt the most reasonable fee structure based on the circumstances of the case. The most common fee structures include:
- Retainer + hourly rate: The client pays an upfront retainer, which the attorney bills against at an agreed-upon hourly rate. This fee structure can provide greater flexibility when the scope of a matter is difficult to predict, while allowing the client to retain the full amount of any financial recovery rather than giving the attorney a percentage of it.
- Flat fee: The attorney charges a predetermined fee for specific legal services. This structure is generally best suited to straightforward matters with a clearly defined scope, such as filing a petition for an undisputed conservatorship or guardianship.
- Contingency-fee basis: The attorney does not charge any upfront or hourly costs but will usually take around 33% to 40% of the final recovery amount if they win the case. This can allow a client to pursue a matter without paying attorney fees upfront, but the attorney ultimately receives a portion of the recovery if the case succeeds.
- Hybrid arrangement: The attorney combines different fee structures to create an arrangement suited to the circumstances of the case. For example, an attorney may agree to charge an initial retainer and hourly rate while also incorporating a contingency fee.
If you have a matter outside of probate administration and wish to secure an estimate on California probate lawyer costs, consult a probate firm directly. The firm can review the facts of your case and accordingly provide an estimate.
Who Pays Probate Attorney Fees in California?
In California estate administration, a probate attorney’s fees are generally paid from estate funds by the personal representative. However, the personal representative generally must obtain court approval before paying themselves or the attorney. This applies to both ordinary compensation and requests for extraordinary compensation.
Beneficiaries and heirs sometimes worry that they will have to pay the probate attorney out of their own pockets. Generally, they will not. Although attorney fees reduce the amount of estate assets ultimately available for distribution, the fees are paid from the estate rather than directly by individual beneficiaries or heirs.
The personal representative also generally does not have to personally pay the estate’s probate attorney fees. However, a court may require the personal representative to reimburse the estate in certain circumstances. For instance, should an attorney defend a personal representative against claims of fiduciary misconduct and the court finds that estate assets were indeed misappropriated, the representative may be required to reimburse the estate for legal defense expenses that it should not have incurred.
What Other Costs Are Involved in Probate?
Probate attorney fees are a major estate expense, along with executor fees, which are generally the same for ordinary services. However, other costs may also arise during probate.
Understanding California probate costs, including what they consist of and how they are handled, can help beneficiaries and heirs understand how these expenses may affect their inheritance, while helping the personal representative comply with legal requirements and avoid problems down the road.
In addition to the estate attorney’s fees, the following costs may arise during probate:
- Personal representative fees: The executor or administrator is generally entitled to the same statutory fees for ordinary services as the estate’s attorney, typically based on the total value of the estate. Extraordinary compensation may also be awarded for certain services.
- Appraisal fees: Certain assets, such as real estate and business interests, generally require professional valuation by a probate referee, who receives a statutory fee based on the asset’s appraised value.
- Other administrative costs: Third-party professionals, such as CPAs or real estate agents, may be hired to assist the personal representative and attorney with estate administration. The estate may also incur costs to maintain property until it can be transferred.
- Court costs: Fees are typically required for filing court petitions and obtaining copies of death certificates or other court documents.
- Potential litigation expenses: If a dispute arises during probate, such as a dispute involving the will or allegations of executor misconduct, the estate may incur additional legal fees and other litigation expenses depending on the nature and resolution of the dispute.
California Probate Attorney Fees FAQs
Do I need a lawyer for probate in California?
No, you don’t need a lawyer for probate in California. However, when probate is required, an experienced probate attorney can help ensure the process proceeds smoothly, efficiently, and in compliance with the law.
Even accidental mistakes can financially harm an estate and expose an executor to personal liability. An attorney minimizes this risk by explaining legal duties and guiding the representative through the process.
Not all estates require probate, in which case a probate attorney may not be necessary unless a dispute or other matter requires court intervention. But, even when a lawyer is not required, legal representation may help protect the interests of a personal representative or other interested party.
What is the average cost of a probate lawyer in California?
There is no single average cost for a probate lawyer to administer an estate in California, as standard fees are calculated directly as a percentage of the estate's total value. Additionally, the court may award extraordinary fees for complex work that goes beyond routine administration.
For example, the statutory attorney fee for a $500,000 estate is $13,000, while a $2 million estate incurs a statutory fee of $33,000. These base amounts cover ordinary services and exclude any additional compensation awarded for extraordinary tasks.
Importantly, statutory probate attorney fees directly mirror the personal representative's mandatory compensation. If an attorney receives $33,000 to administer a $2 million estate, the personal representative is also entitled to $33,000 for ordinary services. Consequently, the estate would pay $66,000 in combined ordinary fees, before accounting for any extraordinary compensation, probate referee appraisal fees, and court costs.
Who gets paid first in probate in California?
In California, a deceased person’s financial obligations to the government generally take priority over other estate expenses and debts. In practice, this means that if the decedent owed taxes, those outstanding amounts generally must be addressed before the personal representative and attorney are compensated or distributions are made to beneficiaries.
Personal representative fees and attorney fees are administrative expenses and generally take priority over lower-priority debts, such as expenses related to the decedent’s last illness or credit card balances. Once higher-priority obligations and administrative expenses are addressed, remaining debts can be paid according to their applicable priority.
Beneficiary and heir distributions generally come last. As a result, beneficiaries and heirs may receive little or nothing if the estate’s debts and administrative expenses exceed the value of its assets.
How much does a lawyer charge to probate a will?
A probate lawyer generally charges the statutory fees established under California law for administering an estate. These fees operate on a sliding scale based on the total value of an estate before debts are paid.
Probate can proceed with or without a will, but the presence of a will generally does not affect the attorney’s statutory compensation for ordinary services. In other words, whether the estate is administered under a will or through intestate succession, the attorney’s ordinary statutory fees remain the same.
However, a will can sometimes lead to disputes over its validity or the meaning of its terms. If an attorney must defend the will in court or seek instructions from the court regarding its interpretation, those services may be deemed as extraordinary and result in additional compensation. Consequently, an estate with a will may incur higher attorney fees than an intestate estate, depending on the circumstances.
Can probate lawyer fees be challenged?
Yes. Although a probate lawyer’s fees for ordinary services are generally determined by California law, they may still be challenged under certain circumstances. For example, interested parties may challenge fees when estate administration takes unreasonably long due to delays within the control of the personal representative or attorney, or when the delays were not in the best interests of the estate, beneficiaries, or heirs.
Interested parties may also object when a probate lawyer requests extraordinary compensation if they believe the requested fees are unwarranted or excessive.
What is the cheapest way to do probate in California?
The least expensive way to handle probate is generally to avoid it through proactive estate planning or, if the estate qualifies, the use of a simplified transfer procedure.
Generally, estates that qualify for simplified procedures are those with relatively low values, modest real estate holdings, or uncomplicated assets. High-value estates or those involving multiple real properties rarely qualify. However, a surviving spouse or registered domestic partner may be able to use a Spousal or Domestic Partner Property Petition regardless of the estate’s size.
If you are still planning your estate, several tools can help your loved ones transfer assets outside of probate after your death. For example, you can use beneficiary designations, a trust, or rights of survivorship to facilitate the transfer of certain assets without probate, provided no disputes or other legal complications arise.
What if I can’t afford a probate lawyer?
It’s usually not a problem if you cannot afford a probate lawyer personally. The personal representative, beneficiaries, and heirs generally are not responsible for paying the estate’s attorney fees out of their own pockets. Instead, the attorney is generally paid from estate funds.
The more important question is whether the estate can afford a probate lawyer. If the estate is insolvent or has significant tax debt, there may not be enough funds remaining after higher-priority debts and expenses are paid to cover attorney fees. In that case, the estate may need to proceed without legal counsel. However, the personal representative can still be held personally liable for losses caused by their actions.
Alternatively, if the estate qualifies, a simplified transfer procedure may be available instead of full probate. Although an attorney can still provide valuable guidance, legal representation is often less necessary for these simpler procedures.
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