Probate is one of those experiences that makes some people shutter when told the will their parent or spouse made has to go through probate. Probate is a court process that is meant to determine if the will is valid, though most wills are not challenged. Still, there are court costs and attorney fees if you have an attorney help you with the process, especially if there are considerable assets to be distributed and debts to be paid.
What Does a Probate Attorney Do?
A probate attorney does a number of things for the decedent’s estate:
- Attends court sessions with or without clients
- Prepares all the necessary paperwork
- Advises and consults with the estate’s executor regarding will challenges, claims or any other issues that may arise such as unpaid taxes
- Provide assistance with selling a property or with maintaining it
Some of these services, such as assisting in the sale of real estate, can result in additional fees over the statutory fees.
What are the Statutory Legal Fees and Other Costs?
California requires that you file a minimum of two petitions, each costing $395, called a Petition to Probate and Petition for Final Distribution. More petitions may have to be filed where the estate is more substantial or complex.
You also have to have the Notice of Probate published in an approved newspaper, where you can expect costs to range from $100 to $450.
The attorney’s fees are mostly based on statutory guidelines, though your attorney can bill for additional fees if challenges arise or certain issues must be handled before the final distribution.
According to California law, attorney fees are based on the fair market value of the assets, without regard for any liabilities, and are calculated as set forth below:
- 4% of the first $100,000
- 3% of the next $100,000
- 2% of the next $800,000
- 1% on the next $9M
- 0.5% on the next $15M
- Whatever is reasonable for any estates valued at over $25M
For a $900,000, estate, the calculation would look like this:
4% of the first $100,000 = $4,000
3% of the next $100,000 = $3,000
2% of the remaining $700,000 = $14,000
If you are the executor, you are entitled to charge these same fees as the attorney. Most executors waive the fee but many do not, especially if they are doing a substantial amount of the work.
Another cost is that of the appraiser, who has to value all of the testator’s assets. His or her fees are 0.1% of the value of the appraised property. In the above example, the costs would be 0.1% of $900,000, or $900.
For the $900,000 estate used as an example, you will have the following potential costs and fees:
Cost of the 2 petitions: $790.00
Notice of Probate publication: $100 to $450
Appraisal fee: $900
Attorneys’ fees: $14,000
Total: $15,790—if the executor wants to be paid, add another $14,000
If additional petitions are filed, add $395 for each. In complex probate cases, expect your attorney to bill for additional fees based on the attorney’s hourly fee, which will be hundreds of dollars per hour.
It is best to avoid probate unless you want to pay these costs and fees and deplete the estate accordingly. Discuss your estate plan with a trusts and estates attorney who can create other testamentary documents and advise you accordingly so that your assets can be distributed according to your intent and you can avoid the considerable costs of a probate.