Before you hire a probate attorney, you should recognize that the "statutory probate fees" set out in Caifornia's Probate Code are not mandatory fees, and most attorneys will negotiate a lower fee.
California Probate Code Section 10810 provides that "for ordinary services the attorney for the personal representative shall receive compensation based on the value of the estate accounted for by the personal representative." The law sets out a schedule for these fees (at right). In addition to the statutory fee, a probate attorney can request additional fees for "extraordinary services," which would include assistance with the sale of real property or the preparation or review of an estate tax return.
4% on the first $15,000. [$600]
3% on the next $85,000. [$2,550]
2% on the next $900,000. [$18,000]
1% on the next $9 million.
0.5% on the next $15 million.Thus, the statutory probate fee on a $100,000 estate would be $3,150, the fee on a $500,000 estate would be $11,150, and the probate attorney's fee on a $1 million estate would be $21,150. In my opinion, these statutory probate fees are usually adequate for small estates, and generous for "moderate" estates. For larger estates, I believe these fees are unconscionably high. In theory, excessive fees from large estates are "balanced" with smaller fees in small estates -- but estates under $100,000 normally need not be probated, and many attorneys refuse to accept small probate cases.
But although the law uses the word "shall," the courts have construed the statutory probate fee schedule only as a maximum fee for ordinary probate services, and routinely authorize fees in lower amounts if negotiated by the executor.
In most cases, the executor and attorney agree that the attorney's fee will be based on the number of hours spent on the proceeding by the attorney, multiplied by the attorney's regular hourly rate, with the statutory fee serving only as a "maximum fee" for "ordinary services." In some cases, the executor may simply negotiate a lower percentage fee -- for example, asking the attorney to accept 50% or 75% of the statutory fee.
Probate Fee Examples: [1] In my most recent completed probate, involving an estate valued at $272,000, my total hourly fees were only $2,300, instead of the statutory probate fee of $6,600.
[2] I also recently handled the probate administration of a $1.6 million estate, in which the statutory probate attorney's fee would have been more than $27,000 but I billed only $5,500 for my time on the case.
[3] In a probate final-distribution petition which I filed for a client on July 24, 1998, my fees and expenses totalled only $4,750 (less than one-quarter of the statutory fee of $21,560).
Of course, total hourly fees will vary considerably based on the complexity of the case and the specific events which may occur during probate administration.My practice is to always work on probate administration matters on an hourly-fee basis, at my standard rate of $190 per hour (as of July 1, 1998), with the statutory fee serving as a maximum fee for ordinary services. (To date, my total fees have always been substantially less than the "statutory fee for ordinary services," except in one contentious probate in which the estate was valued at less than $75,000).
If you have been named as executor in someone's will, or if you will seek appointment as administrator of a deceased person's estate, you should interview several probate attorneys before hiring one. Make sure that you are comfortable with the probate attorney you hire, and demand a written fee agreement.
This is: http://www.ca-probate.com/prob_fee.htm
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