Avoiding probate altogether is a primary aim of most estate plans. At best, probate, the court-supervised process of determining what a decedent’s estate is worth, settling their financial responsibilities, and distributing what is left to their heirs, is a lengthy, stressful, complex process. It may also result in directing someone’s assets to recipients they wouldn’t have necessarily chosen if they die without a will, as their estate will then be divided according to California’s rules for intestate succession. However, another aspect that can come as a nasty surprise for families dealing with the nightmare of probate are the probate fees that can take a significant chunk out of the wealth their loved one had hoped to pass on.
In California, probate fees—that is, attorney’s fees and executor’s fees for ordinary services—are dictated by Probate Code §10810. These fees are based on and limited by the gross value of the estate, as determined by the probate process. As defined by the statute, “the value of the estate accounted for by the personal representative is the total amount of the appraisal of property in the inventory, plus gains over the appraisal value on sales, plus receipts, less losses from the appraisal value on sales, without reference to encumbrances or other obligations on estate property.”
This means that the value of the estate is determined by the inventory conducted by the estate’s executor, perhaps with the assistance of appraisers designated by the court, but without subtracting any of the debts on the estate’s property. The court determines the fees based on the gross valuation of assets in probate, not the net. For example, say the family home appraises for $900,000 (the median value of a single-family home in California as of April 2024) but still has an outstanding mortgage of $600,000. For the purposes of calculating statutory probate fees, it is still valued at the full $900,000.
The fees under §10810 are set as follows:
Note that these amounts may need to be calculated twice—once for the attorney’s statutory fee, and then again for the executor’s statutory fee (although it is possible for the executor to waive their fee). How does this look in practice, based on the gross value of an estate?
To go back to the house example above, if that were the only asset going through probate, these basic statutorily mandated fees would take $42,000 out of the estate’s value, leaving only $258,000 left after the mortgage is paid.
The good news is that none of this is inevitable. You can avoid putting your family through the excruciating probate process and paying wasteful fees by creating a comprehensive estate plan that includes a living trust. At Velasco Law Group, our expert estate law attorneys can guide you and your family on the most appropriate strategies for your situation, helping you learn about the essential components of well-crafted estate plan and how those tools can be effectively used to protect your legacy and your family. We’ll help ensure that your assets will be distributed as you wish after you’re gone, without unnecessary bureaucratic delays, conflict, or expenses.
Velasco Law Group serves clients throughout the Los Angeles and Orange County area, with offices in Long Beach, Downey, and Irvine. We provide consultations in both English and Spanish to provide equal access to legal expertise to our Southern California community. To get started on safeguarding the future for your loved ones, contact us here today.
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