In California, probate fees are set by state law and primarily consist of compensation for the estate’s attorney and personal representative. The fees are a percentage based on the total value of the estate before any debts are paid.
- Avoiding probate can reduce or eliminate fees. Small estates and surviving spouses may qualify for simplified procedures that typically cost less than full probate.
- Complex tasks may justify additional fees. Personal representatives and attorneys can ask the court for extraordinary compensation for work beyond routine probate duties, such as handling tax matters or litigation.
- The court must approve probate fees. Personal representatives and attorneys generally cannot pay themselves without court approval. Taking fees without approval may constitute a breach of fiduciary duty.
Does Probate Cost Money in California?
In California, probate can be a significant expense, generally consisting of fees for the estate’s personal representative and attorney. However, personal representatives may waive their fees, and some estates may qualify for simplified procedures. As a result, probate costs can be vastly different from estate to estate.
When probate is required, statutory fees for a personal representative and the estate’s legal counsel are calculated on a sliding scale based on the estate’s gross value — the total value of the estate at the time of death, before debts are paid. Accurately identifying and valuing estate assets is therefore essential to determining probate fees.
When Can Probate Be Avoided?
Most probate-avoidance strategies must be established before death. If the deceased did not create an estate plan or include probate-avoidance mechanisms, avoiding probate may be difficult. However, certain simplified procedures may allow an estate to bypass full probate even without advance planning.
Common probate-avoidance strategies include:
- Beneficiary designations: Assets with beneficiary designations can generally pass directly to the named beneficiaries upon the owner’s death. Common examples include bank accounts, retirement accounts, and life insurance policies.
- Trusts: Assets transferred into a trust are owned by the trust rather than the deceased person and can generally pass to beneficiaries without probate.
- Joint ownership with rights of survivorship: When property is held with survivorship rights, a surviving co-owner generally assumes full ownership automatically upon the other owner’s death, outside of probate.
Even when an estate includes probate-avoidance measures, probate may still become necessary. For example, a beneficiary designation or trust may be challenged, requiring court intervention to resolve the dispute.
Common simplified probate procedures include:
- Small Estate Affidavit: May be used to transfer personal property if the total value of the estate is $208,850 or less.
- Affidavit re Real Property of Small Value: May be used to transfer real property valued at $69,625 or less.
- Petition to Determine Succession to Primary Residence: May be used to transfer a primary residence valued at $750,000 or less.
- Spousal or Domestic Partner Property Petition: Allows surviving spouses and registered domestic partners to transfer qualifying community and separate property, regardless of value.
If you are unsure whether an estate can avoid probate or qualify for a simplified procedure, a California probate attorney can evaluate the estate and explain the available options.
Who Pays Probate Fees?
Probate fees are generally paid from estate funds in California. They are considered an administrative expense and generally take priority over most other debts, except certain obligations owed to the government.
In practice, this means that if an estate has insufficient funds to pay all its debts, outstanding taxes owed by the deceased and probate fees would generally be paid before mortgages, medical expenses, funeral expenses, and credit card debt.
How Much Does Probate Cost in California?
The cost of probate in California consists of several components, including statutory fees for the estate’s attorney and personal representative, potential additional fees for complex tasks, appraisal fees, and court costs.
The table below provides a detailed breakdown of California’s probate fee schedule.
A Summary of California Probate Costs | ||
Type of Cost | What to Know | How It’s Calculated |
Statutory Fees | California Probate Code sections 10800-10850 outline statutory fees for the estate’s personal representative and attorney. These fees generally apply to ordinary probate tasks.
Personal representatives can waive their fees. | Calculated on a sliding scale based on the gross value of the estate.
The same fee schedule applies to the personal representative and attorney. |
Extraordinary Compensation | Personal representatives and attorneys may petition the court for additional compensation for non-routine probate services, such as litigation, real estate sales, complex tax matters, and business management.
Extraordinary compensation is discretionary and never guaranteed. Requests are generally subject to close scrutiny and should be supported by detailed time records. | Determined by the court based on the nature and extent of the additional work.
The court may consider the estate’s financial circumstances when deciding whether to award extraordinary compensation. |
Appraisal Fees | Certain estate property, such as real estate, vehicles, and stocks and bonds, must be professionally appraised to establish its value for probate purposes.
The estate typically needs to pay a probate referee for this work. | Usually calculated based on the gross value of the estate. |
Court Costs | Court-related expenses, such as filing fees and the cost of obtaining certified copies of the death certificate and other court documents, commonly arise during probate. | These costs are generally modest compared with attorney and personal representative fees, but they can vary depending on the services required and the applicable fee schedule.
Court costs may also change when statewide fee schedules are updated. |
Statutory Fees
An estate’s personal representative and attorney are generally entitled to the same statutory fee, calculated as a percentage of the estate’s gross value before debts are paid. For example, if the personal representative is entitled to $25,000 in statutory compensation, the estate’s attorney is generally entitled to the same amount.
These fees compensate the personal representative and attorney for “ordinary services,” which include routine administrative tasks such as inventorying and valuing estate assets, paying debts, and distributing assets to beneficiaries or heirs.
The table below shows how statutory fees for ordinary probate administration are calculated:
The California Statutory Probate Fee Schedule | |
Value of Estate | Compensation |
First $100,000 | 4% |
Next $100,000 | 3% |
Next $800,000 | 2% |
Next $9 million | 1% |
Next $15 million | 0.5% |
Next $25 million or more | Reasonable amount to be determined by the court |
Statutory fees for personal representatives and their attorneys are cumulative, meaning that each will earn 4% of the first $100,000, 3% of the next $100,000, 2% of the next $800,000, 1% of the next $9 million, and 0.5% of the next $15 million. As the chart shows, if the estate’s gross value exceeds $25 million, the court will determine appropriate compensation for the value above $25 million in addition to the fees already accumulated.
It is not uncommon for deceased persons to nominate a family member as executor. When this occurs, the executor may choose to waive their compensation to preserve more estate funds for distribution to beneficiaries or heirs. However, if an attorney is hired to assist with probate, the attorney generally must still be paid.
If a will clearly specifies compensation for the executor, that directive generally controls instead of the statutory fee schedule. Nevertheless, the executor may petition the court to be released from the will’s compensation provision — for example, if they believe it does not fairly compensate them for the work performed. Interested parties must receive notice of the request, and if the court approves it, the executor may receive compensation greater than the amount provided in the will.
Because statutory fees for the estate’s attorney generally remain the same regardless of which law firm is hired, choosing an experienced probate firm with a proven track record can be especially important.
Extraordinary Compensation
An estate’s personal representative or attorney may petition the court for extraordinary compensation for services that go beyond ordinary probate administration. However, whether additional compensation is awarded is ultimately within the court’s discretion and is never guaranteed.
California Rule of Court 7.703 details the types of services that would be considered “extraordinary” under the law.
For personal representatives, extraordinary services may include:
- Selling, leasing, exchanging, financing, or foreclosing real or personal property;
- Carrying on decedent’s business if necessary to preserve the estate or under court order;
- Preparing tax returns; and
- Handling audits or litigation connected with tax liabilities of the decedent or of the estate.
For attorneys, extraordinary services may include:
- 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.
When an estate’s attorney or personal representative petitions for additional compensation, detailed time records generally must be submitted with the petition to substantiate the request.
The court generally decides whether to approve the petition based on the following factors:
- The value of the estate;
- The complexity of the extraordinary tasks;
- The time required to complete them;
- The results achieved; and
- The benefit to the estate.
Extraordinary fee requests are often closely scrutinized by the court. If the requested fees appear unjustified or unreasonable under the circumstances, interested parties may challenge them, or the court may deny the request.
Appraisal Fees
Non-cash assets generally require appraisal by a probate referee to determine the estate’s overall value for probate purposes. In most cases, the personal representative can value cash and cash-equivalent assets themselves.
Types of estate assets that usually require appraisal by a probate referee include:
- Stocks and bonds
- Real estate
- Automobiles
- Business interests
- Furniture
- Other valuable items
Probate referees are appointed by the California State Controller’s Office and are generally attorneys, CPAs, or other professionals with several years of experience conducting property valuations and appraisals.
Under California Probate Code section 8961, probate referees are entitled to compensation equal to 0.1% of the assets they appraise. They generally must receive at least $75 and are typically capped at $10,000 absent court approval for a greater amount.
Probate referees are usually not needed for simplified probate procedures or estates consisting primarily of cash assets. Whether an estate requires a probate referee is ultimately determined by the court.
Court Costs
The general costs associated with probate are typically modest compared with the fees paid to the personal representative and attorney.
Common probate costs include:
- Initial probate filing. The current filing fee to open a probate case is $435. Subsequent petitions. These may include the Petition for Final Distribution of Decedent’s Estate and the Ex Parte Petition for Final Discharge and Order, among others. Filing fees for these petitions can range from $50 to $435.
- Publication fees. Notices of the death and estate administration must generally be published in a local newspaper of general circulation. Publication costs often range from a few hundred to a few thousand dollars.
- Certified copies. Certified copies of probate documents typically cost around $40 each, potentially adding up to several hundred or even a few thousand dollars depending on how many are required.
Real-World Example of Probate Costs in California
To better illustrate how California probate costs are calculated, consider the following real-world example.
Suppose an estate consists of several bank accounts containing cash, three real properties, and valuable family heirlooms. The estate’s gross value is $2 million.
The fees of the estate would generally be as follows:
Statutory fees for the executor and attorney:
- 4% of the first $100,000: $4,000 for the executor + $4,000 for the attorney
- 3% of the next $100,000: $3,000 for the executor + $3,000 for the attorney
- 2% of the next $800,000: $16,000 for the executor + $16,000 for the attorney
- 1% of the remaining $1 million: $10,000 for the executor + $10,000 for the attorney
Total statutory fees = $66,000
Extraordinary compensation:
Because extraordinary compensation is discretionary rather than guaranteed and depends on multiple factors, it is difficult to estimate in advance. However, for purposes of illustrating potential probate costs, suppose the court awards the personal representative $30,000 for arranging the sale of all three of the estate’s real properties.
Total extraordinary compensation: $30,000
Appraisal fees:
The estate’s real properties and family heirlooms require appraisal by a probate referee. Probate referees are generally entitled to 0.1% of the value of the assets they appraise. Because the value of these assets is unknown, the actual appraisal fee cannot be determined in advance. However, for this example, assume the real properties have a cumulative value of $1 million and the heirlooms are worth $500,000.
- Real property holdings: 0.1% of $1 million = $1,000
- Family heirlooms: 0.1% of $500,000 = $500
Total appraisal fees: $1,500
Court costs:
Court costs vary depending on the number of petitions filed, certified copies required, publication expenses, and other estate-specific factors. For this example, assume three petitions are filed, 10 certified copies are obtained, and publication and miscellaneous expenses total $1,000.
- 3 court petitions: $435 x 3 = $1,305
- 10 certified copies = $40 x 10 = $400
- Publication and miscellaneous costs = $1,000
Total court costs: $2,705
Under these assumptions, the total cost of administering this $2 million estate would be $100,205.
California Probate Fees FAQs
What is the minimum amount for probate in California?
Legally speaking, there is no minimum estate value required to open a formal probate case in California. However, opening formal probate when it is unnecessary can subject the estate to unnecessary costs and should generally be avoided when a simpler alternative is available.
When an estate’s total value at the time of death is $208,850 or less, the estate contains only modest real estate holdings of small value, or the petitioner qualifies as a surviving spouse or registered domestic partner, a simplified procedure may be available instead of formal probate. These procedures can allow property to be transferred to beneficiaries or heirs without the full probate process and may not require the involvement of a personal representative or attorney, helping keep costs relatively low.
That said, even an estate eligible to bypass formal probate may ultimately require one if disputes arise, such as challenges to the validity of the will, creditor claims, or disagreements over ownership of estate property.
Who pays probate attorney fees in California?
In California, probate attorney fees are typically paid from estate funds by the personal representative. However, the personal representative must obtain court approval before these fees can be paid.
Unless the personal representative is deemed personally liable for misconduct or mismanagement of estate assets, they generally are not individually responsible for paying estate expenses, including attorney fees.
Can you do probate without a lawyer in California?
Yes, you can go through probate without a lawyer in California. While hiring an attorney is almost always optional in a probate case, most personal representatives choose to retain one for guidance throughout the process, help with their administrative duties, and protection against potential personal liability.
While handling probate without a lawyer can potentially save a substantial amount in fees, doing so may be shortsighted and could ultimately cost more in the long run. A probate lawyer has the knowledge, skills, and experience to navigate the process efficiently, help ensure deadlines and other requirements are met, address beneficiary challenges, and resolve questions or disputes that arise along the way.
Because attorney fees are generally paid from estate funds, hiring a lawyer does not typically create a direct out-of-pocket expense for the personal representative.
Is there a probate tax in California?
No, California does not impose a probate tax. However, an estate may be subject to the federal estate tax if its net value exceeds $15 million for an individual or $30 million for a couple. An estate also may owe capital gains tax on income earned after the decedent’s death.
A probate attorney or qualified tax professional can help determine which taxes an estate may be required to pay. While the personal representative generally is not personally responsible for the decedent’s unpaid taxes, they could become liable if they distribute estate assets to beneficiaries before satisfying the estate’s tax obligations.
In general, distributions to beneficiaries are made only after the estate’s debts and expenses have been addressed.
Who gets paid first in probate in California?
In California, an estate is generally required to satisfy financial obligations owed to the government, such as outstanding taxes, first. Once those obligations have been satisfied, administration expenses are paid next. These typically include the fees of the personal representative and attorney, any additional compensation awarded for extraordinary services, appraisal fees, and court costs.
Probate Code section 11420 specifies the order in which debts must be satisfied in California:
- Debts owed to the United States or State of California
- Expenses of administration
- Obligations secured by a mortgage, deed of trust, or other lien
- Funeral expenses
- Expenses of last illness
- Family allowance
- Wage claims
- General debts
When an estate’s debts exceed its total value, beneficiaries and heirs generally will not receive an inheritance because the estate’s assets must first be used to satisfy the debts.
What assets are exempt from probate in California?
Trust assets, assets with beneficiary designations, and jointly owned assets with rights of survivorship generally avoid probate in California because they can transfer to the appropriate recipients through mechanisms outside the probate process.
- Trust assets are generally owned by the trust rather than the deceased person at the time of death and therefore are not part of the probate estate.
- Beneficiary designations allow assets to pass directly to named beneficiaries outside of probate following the owner’s death.
- Rights of survivorship allow full ownership of jointly held assets to transfer automatically to surviving co-owners upon the other owner’s death without probate.
It’s important to remember that assets that typically avoid probate may still become subject to the probate in certain circumstances — for example, if ownership of the asset is disputed, the will is challenged, or a creditor seeks a judgment to satisfy a debt.
How long does the average probate take in California?
California probate typically takes 12 to 18 months, although some estates can be resolved more quickly while others may remain open significantly longer. The timeline for probate depends largely on the estate’s complexity and whether disputes or other complications arise.
For example, probate may take longer when an estate involves substantial real estate holdings, a will contest, property disputes, or allegations of executor misconduct or mismanagement. By contrast, a straightforward estate with few assets and no disputes can often move through the process more efficiently.
Because no two estates are exactly alike, there is no reliable one-size-fits-all timeline. A probate attorney can assess the estate’s assets, outstanding obligations, and any potential disputes to provide a more tailored estimate. This can be important for planning purposes, as the longer probate remains open, the more the estate may ultimately spend on administration and other expenses.
What happens if you don’t file probate in California?
In California, when an estate requires probate but no case is opened, estate assets may remain inaccessible, preventing their transfer to beneficiaries or heirs.
Other potential consequences include:
- Unpaid debts. Creditors may petition to open probate themselves, potentially placing the estate in the hands of an unintended party.
- Accumulating expenses. An unadministered estate may incur interest, penalties, and other expenses that no one has authority to manage or pay.
- Depreciating property. Estate assets may lose value due to inadequate maintenance, deterioration, or market fluctuations.
- Compromised fiduciary status. A named personal representative who fails to initiate probate within the required timeframe may risk losing their right to serve.
- Delayed distributions. Beneficiaries and heirs generally cannot receive their inheritances until the estate is properly administered and probate is complete.
Struggling to understand California probate costs? We can help break them down.
Learn how Keystone Law can help you navigate the costs of probate, or tell us about your situation below.
