STATUTORY PROBATE ATTORNEY'S FEE AND EXECUTOR'S COMMISSION
In California, the fee that an attorney can charge for the ordinary legal services that are required in order to administer a Probate estate is fixed by law in California Probate Code Section 10810. These fees are commonly referred to as the "statutory attorney's fee". The statutory attorney's fee is calculated based upon the value of the assets of the Probate estate according to the following schedule:
(1) Four percent on the first one hundred thousand dollars ($100,000).
(2) Three percent on the next one hundred thousand dollars ($100,000).
(3) Two percent on the next eight hundred thousand dollars ($800,000).
(4) One percent on the next nine million dollars ($9,000,000).
(5) One-half of 1 percent on the next fifteen million dollars ($15,000,000).
(6) For all amounts above twenty-five million dollars ($25,000,000), a reasonable amount to be determined by the court.
In addition to statutory attorney's fees, there are times that an attorney is required to, or asked by the client to, perform additional services relating to the estate, known as extraordinary services, and the attorney is allowed by law to collect additional fees for these services if the court approves the attorney's fee request for extraordinary services. By the terms of Probate Code Section 10811, these additional fees can include fees for services performed by the attorney or by a paralegal (legal assistant) performing the extraordinary services under the direction and supervision of an attorney.
The fees that an Executor or Administrator may collect in a probate estate for ordinary services are also fixed by law, and are also based on the value of the estate. The amount of the Executor's statutory "commission" is the same as the amount of the statutory attorney's fee.
The Attorney's fee and Executor's commission in a probate estate are not allowed to be paid without a prior court order, and are normally asked for and awarded by the court at the close of the probate estate. However, if the administration of the estate is delayed by unusual circumstances, the court may allow the attorney and the Executor to collect fees on account prior to the close of the estate.
Costs (which are separate and distinct from the attorney's fees) must be paid by the client as the case progresses. In my practice I take an advance deposit from the client to cover all of the anticipated costs before we start the case. If the client advances personal funds to pay for these costs, these costs can be repaid to the client from the probate estate once the client is appointed by the court as the Executor or Administrator. Costs commonly incurred in a probate estate include the court's filing fees and costs for certified copies of court documents, publication costs, costs of mailing or serving notices, costs of publication of notices in newspapers, bond premiums, and other costs which vary in each case.
PROBATE FILING FEES
The fees required in order to file a court Petition for Probate or Petition to Administer Estate are set by law, and are set forth in California Government Code Section 70650(a) et. seq.
IMPORTANT UPDATE REGARDING PROBATE FILING FEES !!
The California Appellate Court has recently ruled that the graduated filing fees enacted in 2006 violate the California Constitution. The filing fee in all probate cases is now held at $320.00 - See Estate of Claeyssens (2008), 161 Cal.App.4th 465
ATTORNEY'S FEES FOR NON-PROBATE MATTERS
For non-probate matters (such as the administration of a living trust, spousal property petitions, terminations of joint tenancy, small estate procedures, and other non-probate estate administration procedures) the fees that an attorney may charge are not fixed by law, and may be charged upon an hourly rate basis or on a fixed-fee basis. In all cases an attorney's charges must be "reasonable". At the present time my hourly rate is $300.00 per hour, and my legal assistants' rate is $95.00 per hour. These rates are subject to change in the future. I also sometimes charge a fixed-fee for some types of matters, and we can discuss the availability of a fixed-fee when we discuss your case.
OTHER COSTS AND EXPENSES OF ADMINISTRATION
There are many other costs and expenses that must be paid before the close of a decedent's estate, whether it is a probate or non-probate case, and these costs and expenses vary from case to case. These costs and expenses can include the decedent's funeral and burial expenses, debts, unpaid taxes, insurance, accountant's fees, financial advisor fees, bookkeeping fees, and many other expenses too numerous to list here. We can discuss those other costs and expenses when we discuss your case.