Estate planning guide
Probate Costs in California
Probate attorney and executor fees are set by state law and figured on the estate’s gross value, before any mortgage is subtracted.
Reviewed by Jay S. Yu, Esq.
Why it matters
The law sets the fees.
Probate is the court process that transfers property a person owned in their own name after they die. In California, the main probate fees are set by statute and grow with the value of the property, so the cost can be significant.
Those fees are figured on the gross value of what goes through probate, not on what the family actually inherits. A home with a large mortgage produces the same fees as a home of the same value owned free and clear, and court costs, appraisal fees, and months of waiting come on top.
This guide explains how probate fees are calculated, what else probate costs, how long the process takes, when a smaller estate can use a simpler procedure, and how a funded living trust can let your family avoid probate.
What is probate in California?
Probate is a court case that settles the estate of someone who died with property in their own name. The court appoints a personal representative, usually the executor named in the will or, if there is none, an administrator. That person gathers the property, pays debts, and distributes what is left.
Along the way, the personal representative generally has to:
File a petition with the superior court and publish notice of the hearing in a newspaper
Prepare an inventory, with property other than cash valued by a probate referee the court designates
Give notice to known creditors and deal with their claims
Ask the judge to approve the final distribution to the people entitled to the property
Having a will does not keep property out of probate. A will tells the court who should receive the property, and the court still oversees the transfer. Our guide to a trust or a will in California explains the difference.
How are probate attorney and executor fees calculated?
Unless the will sets the personal representative’s pay, California law sets a fee for the personal representative and the same fee, separately, for the personal representative’s attorney. For ordinary probate work, each fee is a percentage of the estate’s value:
4 percent of the first $100,000
3 percent of the next $100,000
2 percent of the next $800,000
1 percent of the next $9 million
One-half of 1 percent of the next $15 million
A reasonable amount set by the court above $25 million
The value used is the appraised value of the property in the inventory, adjusted for gains, losses, and receipts during the case, with no reduction for mortgages or other debts against the property.
For example, if the only asset is a house appraised at $800,000 with a $500,000 mortgage, both fees are figured on $800,000. That comes to $19,000 for the attorney and $19,000 for the personal representative, or $38,000 in all if both fees are paid, though the equity is $300,000. The court can also allow additional fees for extraordinary services.
What other costs come with probate?
The statutory fees are usually the largest cost, but not the only one. Other common costs include:
Court filing fees, which the California courts list as typically $435 for the first petition
The newspaper’s charge for publishing notice of the hearing
The probate referee’s commission, one-tenth of 1 percent of the value of the property the referee appraises (at least $75 and generally no more than $10,000), plus expenses
A bond premium, unless the will waives the bond or all beneficiaries waive it in writing (the court can still require one for good cause)
The cost of keeping up property while the case is open, such as insurance, utilities, and property taxes on a house
The California courts’ self-help site notes that the costs of administration are often well over $1,000 and can be much more.
How long does probate take in California?
The California courts say formal probate typically takes 9 to 18 months and can take longer. Part of that time is built into the law: creditors generally have four months after the court first issues letters to the personal representative to file their claims.
A will contest, a dispute among family members, a house that has to be sold, or a busy court calendar can add months. Until the court approves a distribution, the property generally stays in the estate, and someone has to keep up the house, the bills, and the paperwork.
Can a smaller estate skip full probate?
Sometimes. California has simpler procedures for smaller estates:
Personal property. If the gross value of the person’s California property is $208,850 or less, the people entitled to it can generally collect it with a sworn statement, without a court case, once 40 days have passed since the death.
A primary residence. If the home was the person’s primary residence and its gross value is $750,000 or less, a successor can ask the court, by petition, for an order that the home passes to them, instead of opening full probate.
Property passing to a surviving spouse. It generally passes without probate, and a spousal property petition can confirm the transfer.
Joint tenancy property, accounts with a payable-on-death beneficiary, and property in a living trust are not counted toward these limits. The limits depend on the date of death, and the state adjusts them every three years. An estate over them generally needs formal probate, and even the simpler procedures involve paperwork and waiting periods.
How does a living trust avoid probate costs?
A revocable living trust avoids probate because property held in the trust is not part of your probate estate when you die. Your successor trustee can transfer it to your beneficiaries under the trust’s terms, without a probate case, so the statutory probate fee schedule does not apply.
A trust only works for property that is actually in it, so your home needs a deed into the trust, and accounts need to be retitled or given the right beneficiary designation. Anything left in your own name may still need probate, even with a pour-over will. Our guide to funding your living trust covers each type of asset.
A successor trustee still has duties, such as notifying the beneficiaries and heirs within 60 days after the death and keeping the beneficiaries reasonably informed. That work generally happens without court hearings or a percentage fee set by statute, though the trustee is entitled to reasonable pay unless the trust says otherwise. Joint tenancy can also avoid probate for a single asset, with tradeoffs explained in our guide to joint tenancy and your trust.
Talk with us
Montanez Yu prepares complete trust-based estate plans for individuals and families throughout Southern California, including the trust, the pour-over will, powers of attorney, health care directives, and the deed that moves your home into the trust. We handle consultations and planning meetings remotely.
Estate planning consultations are free, and every plan is a flat fee, quoted in writing before we begin. Call (951) 444-7407 or request a free consultation.
This guide is general information about California law, not legal advice for your situation.