Attorney and Executor Fees For Probate

The personal representative and the attorney are EACH entitled to the fee shown on this page. If extraordinary services are performed by them, the court will allow a reasonable fee for those services. Total amount of Executor’s commission probate estate (same as attorney fees) + % of total probate estate

15,000 600 4% of total
50,000 1,650 3% of total
100,000 3,150 2% of total
150,000 4,150 2% of total
200,000 5,150 2% of total
300,000 7,150 2% of total
400,000 9,150 2% of total
500,000 11,150 2% of total
600,000 13,150 2% of total
700,000 15,150 2% of total
800,000 17,150 2% of total
900,000 19,150 2% of total
1,000,000 21,150 1% of total
1,250,000 23,650 1% of total
1,500,000 26,150 1% of total
2,000,000 31,150 1% of total

Methods For Avoiding Probate

Because of the many drawbacks to the probate process, many people choose to have their property pass outside of probate. The most common ways to pass property outside of probate include:

  1. A revocable Living Trust. This is the most popular form of probate avoidance. A living trust acts very much like a will except that it avoids the probate process.
  2. Joint tenancy. In a joint tenancy, each joint tenant owns an equal share of the property. When one of the joint tenants dies, their share will automatically go to the surviving joint tenant. Since joint tenancy property does not go through probate, you cannot transfer joint tenancy property by a will.
  3. Life insurance. The proceeds of your life insurance policy will pass directly to the beneficiaries that you named on the policy.
  4. Pay-on-death bank accounts. In these types of accounts (savings, checking, bank money market, certificate of deposit), you will name the person(s) who are to receive any money that remains at your death. While you are alive, the person you name will have no rights to access these accounts.
  5. IRAs and other retirement plans. Many retirement plans will allow you to name a person to receive any money that remains at your death.

The Disadvantages of Probate

The disadvantages of probate proceedings are:

  • Probate costs can be expensive because of the fees paid to both the executor and the attorney.
  • The proceedings are time consuming, and the delays are excessive.
  • Court proceedings are inflexible.

The Advantages of Probate

The advantages of probate proceedings are:

  • Court protection for the heirs and beneficiaries.
  • Probate cuts off the claims of creditors after the four-month period following the issuance of letters testamentary. The personal representative must give notice to known creditors of the estate. A similar procedure exists for the revocable living trust.
  • The transfer of title in a probate is a public record that prevents problems with title companies.
  • Court supervision is available to answer questions and resolve disputes.
  • The probate estate is a separate taxpayer and some tax savings may result.
  • The costs of probate are deductible for income tax and death tax purposes, if properly planned.

What is Probate?

Probate is a method of transferring assets under court supervision as provided in a will, or, if a person dies without a will, of transferring assets under court supervision to heirs in accordance with state law.

Assets in the decedent’s name alone (separate property) must be probated to transfer title. Community and quasi-community property must be probated if it is left by will to someone other than the surviving spouse. Assets that cannot be controlled by a person’s will are not subject to probate. They include:

  1. assets in joint tenancy.
  2. life insurance policy proceeds.
  3. death benefits from qualified retirement trusts, Keogh Plans, IRAs.
  4. assets held in living trusts.

If the decedent left a valid will, the will is filed on death in the probate court, and the court, if it accepts the will, appoints an executor. If the decedent left no will, the court appoints an administrator to serve. The executor or administrator are fiduciaries whom the court supervises.

The executor or administrator must collect assets subject to probate, pay debts and death taxes, and request court approval to transfer assets to the decedent’s heirs or to the persons named in the will. The fees charged by executors or administrators and their attorneys are determined by state law (see, Table: California Statutory Commissions and Fees).

The estate pays income taxes due on the income of probate assets until the assets are distributed or the estate is closed. The usual duration of probate is from nine months to two years. The size and complexity of the probate estate determines the duration of probate. A complicated probate can continue beyond two years.

The court grants the executor or administrator approval for transfer of probate assets to the heirs or to persons named in the will. On final distribution and transfer of all probate assets, the court discharges the executor or administrator.