A $1.5 million estate going through California probate could face $56,000 in ordinary statutory fees alone. That amount may surprise San Diego families who assume probate costs depend mainly on how much work an attorney performs.
In California the law sets a formula for ordinary probate fees, and in calculating the fee base it generally does not subtract mortgages, liens, or other obligations from the value of estate property. For families in La Jolla, UTC, and Clairemont Mesa, that distinction can be expensive.
How Are California Probate Statutory Fees Calculated?
California law sets ordinary compensation for the estate’s personal representative, often called the executor, and for the attorney representing that person, on a sliding scale:
|
Portion of Probate Estate |
Statutory Fee Rate |
|
First $100,000 |
4% |
|
Next $100,000 |
3% |
|
Next $800,000 |
2% |
|
Next $9 million |
1% |
|
Next $15 million |
0.5% |
|
Above $25 million |
Reasonable amount determined by the court |
These rates apply separately to the personal representative and the probate attorney, so an estate may pay two sets of statutory fees rather than one.
What Would Probate Cost for a $1.5 Million San Diego Estate?
On a $1.5 million statutory fee base, the formula produces $28,000 for the personal representative and $28,000 for the attorney, for $56,000 in combined ordinary compensation. Here is how it gets there, assuming no adjustments for receipts or gains and losses during administration:
|
Estate Value Bracket |
Fee |
|
First $100,000 at 4% |
$4,000 |
|
Next $100,000 at 3% |
$3,000 |
|
Next $800,000 at 2% |
$16,000 |
|
Remaining $500,000 at 1% |
$5,000 |
|
Total for each |
$28,000 |
These are the amounts the formula produces, assuming both parties request and receive full ordinary compensation. They are not a guaranteed final bill, and statutory compensation is not paid in advance of a court order authorizing it. An estate may also face filing fees, publication expenses, probate referee appraisal fees, and other costs, and a court may approve additional compensation for extraordinary services.
Why Your Mortgage May Not Reduce Probate Fees
Here is where California homeowners get caught. Consider a La Jolla home worth $1.5 million carrying a $900,000 mortgage. The owner’s equity is roughly $600,000, but if the home is part of the probate estate, its $1.5 million appraised value generally counts toward the statutory calculation. The mortgage is not deducted simply because the family still owes on it, which is a separate question from who keeps paying that mortgage during administration.
In neighborhoods where a home is most of a family’s wealth, that one rule can significantly affect the result. The actual calculation depends on all property subject to probate and the adjustments the law requires, and assets passing outside probate are generally not included merely because the deceased person owned them.
Would a Living Trust Have Changed This?
For assets properly transferred into it, yes. A properly created and funded revocable living trust can let assets pass to beneficiaries without formal probate, and the statutory formula generally does not apply to assets that avoid probate. Had the $1.5 million in the example been properly titled in a trust, there would generally be no probate estate for the formula to run against.
The catch is in the word funded. Signing a trust document is not enough by itself. Real estate generally requires recording an appropriate deed transferring title to the trustee, and other assets require their own steps. An unfunded trust can leave a family in the exact proceeding it was meant to avoid. A trust also does not eliminate all costs, and a revocable trust does not automatically eliminate estate taxes or protect assets from the creator’s creditors.
What If You Already Have a Will?
A will does not automatically keep an estate out of probate. Whether probate is required depends on the assets, how they are owned, the date of death, and whether a simplified procedure applies, which is really a question about what determines whether your family sees probate at all. Two families with similar net worth can get very different answers.
Key Takeaways
- California sets ordinary probate compensation by statutory formula, not by hours worked.
- The personal representative and the attorney are each compensated under the same schedule, so an estate may pay two sets.
- A $1.5 million statutory fee base produces $28,000 for each, or $56,000 combined, if both request and receive full ordinary compensation.
- Statutory compensation requires a court order and is not paid in advance of one.
- Mortgages and other debts are generally not deducted from the value used in the calculation.
- A funded living trust may keep assets out of probate, but it does not make administration free.
Find Out What Your Own Estate Would Face
The formula is public, but the number that matters is the one for your assets, and that depends on what you own, how each asset is titled, and which transfers would fall outside probate. Those are not questions a blog post can answer for you. At Hsiao Law in La Jolla, Attorney Amy Hsiao and her team walk families through exactly that, in everyday language, in English and in Mandarin. Schedule a consultation for a free 15-minute phone call and find out where your own plan stands.
This article provides general information about California probate and estate planning law. It is not legal advice. Probate requirements, statutory compensation, and available transfer procedures depend on the facts of each estate.
References: California Probate Code § 10800; California Probate Code § 10810; California Probate Code § 10811; California Rules of Court, rule 7.700.
