HOW MUCH DOES PROBATE
California Probate Code section 10810 sets the maximum statutory fees that attorneys can charge for a probate. Higher fees can be ordered by a court for more complicated cases. The fees are four percent of the first $100,000 of the estate, three percent of the next $100,000, two percent of the next $800,000, one percent of the next $9,000,000, and one-half percent of the next $15,000,000. For estates larger than $25,000,000, the court will determine the fee for the amount that is greater than $25,000,000.
The fees listed below are the California statutory fees used to compensate attorneys and executors in probate cases for various sizes of estates. If both the attorney and the executor receive a fee, the amount paid will be double that shown below. The value of the estate is determined, in general, by the inventory for the estate. (If an accounting of the estate has been waived, the total value of the estate for attorney's fees purposes is the inventory, plus gains on sales, minus losses on sales.) Debts are not included in determining attorney's fees, and if a house is appraised at $1,000,000, for example, and it has a mortgage of $800,000, it is still considered a $1,000,000 asset for the purpose of calculating attorney's fees.
The fee charged to file a probate petition is $355, but may be slightly higher in some counties due to surcharges. Filing fees were substantially higher until a state appellate court ruled in early 2008 that the fees were unconstitutional because they violated Proposition 6, passed in 1982 to eliminate the state inheritance tax.
In probates that are complicated by lawsuits or tax problems, the attorney and executor can ask the judge to approve fees that are higher than those set by state law.
In addition to the statutory fees, there are costs for appraisal fees, publication costs, and miscellaneous fees charged by the county. A typical estate might incur an additional $1,000 to $3,000 in court costs and other required fees.
ADVANTAGES OF PROBATE:
The proceedings are controlled by a judge, who can decide disputes between heirs or between the heirs and the executor. Creditors are required to submit their claims against the estate within a four-month period, provided they have been notified of the probate. The executor is required, in most cases, to prepare an accounting and report of the executor's activities.
DISADVANTAGES OF PROBATE:
1. Probate costs too much.
The cost is usually much higher than would be required
for the administration of a living trust for an estate valued at the same
2. Probate takes too long.
It usually takes longer to probate an estate than to administer a trust. Probate generally takes between 1 to 2 years. During the process the family must relive the death of their loved one with each new letter and each meeting with the executor. If the process can be made shorter then the family will be able to come to closure more quickly.
3. Probate is NOT private.
The courts are public and so are most court records. Most people like to keep their financial matters private during their lives and even after
their deaths. Accordingly, for such individuals, it makes sense to keep the estate
distribution process private. This can be done by staying out of probate court by having a living trust and properly funding it with your assets.
Many estates do not need to be probated. If you would like to avoid probate, please contact Attorney Tom Nemat at the Law Firm of Tom Nemat to discuss your estate planning options. Tom may be reached at (949) 375-5541 or email@example.com.
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