Before you hire a probate attorney, you should recognize that the “statutory probate fees” set out in Caifornia’s Probate Code are not mandatory fees, and most attorneys will negotiate a lower fee.

4% on the first $15,000. [$600]
3% on the next $85,000. [$2,550]
2% on the next $900,000. [$18,000]
1% on the next $9 million.
0.5% on the next $15 million.

California Probate Code Section 10810 provides that “for ordinary services the attorney for the personal representative shall receive compensation based on the value of the estate accounted for by the personal representative.” The law sets out a schedule for these fees (at right). In addition to the statutory fee, a probate attorney can request additional fees for “extraordinary services,” which would include assistance with the sale of real property or the preparation or review of an estate tax return.

Thus, the statutory probate fee on a $100,000 estate would be $3,150, the fee on a $500,000 estate would be $11,150, and the probate attorney’s fee on a $1 million estate would be $21,150. In our opinion, these statutory probate fees are usually adequate for small estates, and generous for “moderate” estates. For larger estates, we believe these fees are unconscionably high. In theory, excessive fees from large estates are “balanced” with smaller fees in small estates — but estates under $100,000 normally need not be probated, and many attorneys refuse to accept small probate cases.

But although the law uses the word “shall,” the courts have construed the statutory probate fee schedule only as a maximum fee for ordinary probate services, and routinely authorize fees in lower amounts if negotiated by the executor.

In most cases, the executor and attorney agree that the attorney’s fee will be based on the number of hours spent on the proceeding by the attorney, multiplied by the attorney’s regular hourly rate, with the statutory fee serving only as a “maximum fee” for “ordinary services.” In some cases, the executor may simply negotiate a lower percentage fee — for example, asking the attorney to accept 50% or 75% of the statutory fee.

If you have been named as executor in someone’s will, or if you will seek appointment as administrator of a deceased person’s estate, you should interview several probate attorneys before hiring one. Make sure that you are comfortable with the probate attorney you hire, and demand a written fee agreement. This is: