California Probate Fees — Explained
In this article, we discuss under what circumstances probate is generally needed, the types of factors that can affect the cost of probate in California, and how to calculate California probate fees.
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What is the cost of probate in California? This question does not have a straightforward answer, as the cost of probate will be different for every estate. While a California probate fees calculator can provide you with a rough estimate, the best way to determine the California probate fees for your loved one’s estate is to consult with a probate lawyer, as there are many factors that can contribute to the cost of probate in California, and typically, only legal professionals with experience in probate possess the expertise to provide an accurate estimate.
This article on California probate fees will be especially important for present or future executors and administrators of the estate to read, as they are responsible for paying all probate-related expenses before they make distributions to beneficiaries.
Unless most of a decedent’s assets are held by their trust or the decedent’s estate is small, probate generally will be needed. Keep reading to learn about what probate is and the types of estates that require it.
What is Probate?
In simplest terms, probate is the court-supervised process through which a person’s estate may need to pass after they die. During probate, the court authenticates the decedent’s will and appoints an executor or administrator so they can begin the process of paying the decedent’s debts and distributing their assets to beneficiaries according to the instructions provided in the will. Probate can take anywhere from 12 months to several years; its length generally depends on the size and complexity of the estate.
If a decedent died without a will, then their estate may still need to pass through probate, but the court will appoint an administrator instead of an executor, and the decedent’s assets will be distributed to their heirs in accordance with the state’s intestate succession laws, which can be found in California Probate Code section 6400.
Do You Have to Pay for Probate?
The short answer is no. There are ways to not only avoid paying California probate fees, but to bypass the probate process altogether.
For example, if a decedent died after April 2022 and the decedent’s estate is valued at less than the California probate minimum of $184,500, their heirs may be able to use a simplified procedure known as a Small Estate Affidavit to transfer the decedent’s property. Another simplified procedure that can be used, but only by surviving spouses and registered domestic partners, is a Spousal Property Petition. While this procedure does not avoid probate altogether, it can expedite the process of transferring estate assets to a decedent’s surviving spouse.
Opting for a trust instead of a will is another method people use to avoid probate. If a decedent’s assets are held in trust, a formal probate will not be required, as a trust can generally be administered privately by a trustee without court supervision.
Lastly, certain transfer-on-death assets—such as bank accounts, retirement accounts, life insurance policies and perhaps even cars and homes—may also be able to avoid probate if the decedent designated beneficiaries to whom the assets should pass. If a person plans to co-own property, it is recommended they consider the advantages and disadvantages of California’s title-vesting options to find one that suits their needs, as certain ways of holding title can prevent property from having to pass through probate if a co-owner dies.
How Much Does Probate Cost in California?
What is the cost of probate in California? There is little ambiguity when it comes to the California probate fee structure. Indeed, California Probate Code section 10800 lays out a set structure for calculating the personal representative’s statutory (or “ordinary”) compensation, and lays out an identical structure for calculating the ordinary compensation of the personal representative’s legal counsel.
The cost of probate in California generally has several components to it. Some of the more common costs include compensation for the personal representative (i.e., the executor/administrator) and their attorney, extraordinary fees and appraisal fees.
Extraordinary Fees for Probate in California
In California probate, extraordinary fees may be charged by the personal representative or their attorney if the services they provided to the estate went beyond their typical duties.
California Rule of Court 7.703 details the types of services that would be considered “extraordinary” under the law.
For personal representatives, extraordinary services 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 of personal representatives, extraordinary services 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 an 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.
If a personal representative or an attorney of a personal representative is requesting fees for extraordinary services from the estate (in addition to the statutory fees detailed in the chart from the previous section), then their request will need to be submitted with substantiation documents (e.g., time records) for approval by the court.
Extraordinary fees are generally based on the following:
- The value of the estate;
- The difficulty of the extraordinary tasks performed and time spent;
- The results achieved; and
- Whether the results benefited the estate.
A probate attorney can help you determine whether an estate will require extraordinary services and what the cost of those services might be.
California Probate Fees for Appraisal of Estate
If an estate is being probated, it is likely a probate referee will be needed to appraise the estate’s non-monetary assets to determine the overall value of the estate.
Assets that generally need to be appraised by a probate referee include:
- Stocks and bonds
- Real estate
- Property owned by the decedent’s business
- Valuable items
Probate referees are appointed by the California State Controller’s Office and are generally attorneys, CPAs or people who have several years of experience carrying out property valuations and appraisals.
According to California law, probate referees are entitled to compensation that amounts to 0.1% of the assets they appraised. Probate referees must be paid a minimum of $75, but are generally capped at earning $10,000 absent court approval of a greater amount.
Small Estate Affidavits and Spousal Property Petitions, which we discussed in an earlier section, may not require the services of a probate referee. Probate referees also may not be needed for estates that are composed mostly of cash or cash-equivalent assets. The decision of whether or not a probate referee is required is usually left up to the court.
Basic California Probate Filing Fees
How much are probate fees in California? The good news is that the court has no discretion over probate filing fees in California, and they are minimal compared to the other fees an estate passing through probate is required to pay.
If you are the personal representative of an estate, you will generally be responsible for filing at least two petitions over the course of probate. They are:
- Petition for Probate
- Petition for Final Distribution
The Petition for Probate is what launches the probate process. Once this petition is filed, the court will set a date for the initial probate proceeding in which a personal representative is appointed to administer the estate and the decedent’s will is authenticated by the court (if they had one).
The Petition for Final Distribution is filed at the conclusion of the probate process after the personal representative has settled all of the decedent’s debts and is requesting permission from the court to make final distributions to estate beneficiaries and/or heirs.
The California filing fees are posted on the California Courts website.
FAQs on California Probate Fees
The complex California probate fee structure can be difficult to navigate without the help of a skilled attorney. The following are the most frequently asked questions our attorneys receive in regard to the cost of probate in California.
Is there a California probate minimum?
Yes. For an estate to require a formal probate, it should generally be worth more than $184,500, which is the minimum value required as of April 1, 2022.
What is the California probate tax rate?
California does not impose a separate estate tax on inherited assets. However, estates in California are still subject to federal estate tax if the size of the estate is sufficiently large. California estates are likewise liable for income taxes to the extent the estate assets earned income after the decedent’s death. In order to determine whether estate or income taxes are owed and the applicable tax rate, it is important to speak with a qualified probate attorney.
While the personal representative is generally not held personally liable for the decedent’s unpaid taxes, they could become liable if they distribute the decedent’s assets to beneficiaries before paying all of the decedent’s taxes.
Do I have to pay a lawyer to assist with probate?
Due to the complex nature of the probate process, it is highly recommended that you hire qualified probate counsel to assist you with probate. Many seasoned executors and administrators struggle to complete their administrative duties without help from an attorney, and if you have never acted as an executor or administrator of an estate before, it is certainly a worthwhile investment to have an experienced probate attorney on your team.
During administration, there is little room for mistakes, as personal representatives can be held personally liable for the financial harm they cause estates. This is why it is always best to err on the side of caution and work with an attorney.
Who pays attorney’s fees if a law firm is hired to assist with the probate process?
In general, attorney’s fees for services rendered to an executor or administrator of an estate are paid from the estate . Before attorneys can be paid from estate assets, however, court approval of the fees will need to be obtained.
Considering that the estate can most likely cover the cost of professionals whose services benefit the estate, there is little reason to not involve them in the probate process.