Probate Fees in California Are Based on Gross Value, Not Your Equity

Where the number actually comes from

California does not leave the figure open to negotiation. Probate Code section 10810 sets the attorney's compensation for ordinary services as a percentage of the estate.[1] The brackets are these.

Four percent of the first $100,000. Three percent of the next $100,000. Two percent of the next $800,000. One percent of the next $9 million. One half of one percent of the next $15 million. Above $25 million, whatever the court decides is reasonable.

On an $800,000 home that comes to $19,000. The word ordinary is doing real work in that sentence, and section 05 below explains what it leaves out.

The gross value rule

This is the part that catches families, and almost nobody is warned about it in advance.

Section 10810 values the estate without reference to encumbrances or other obligations on estate property.[1] The mortgage does not come off before the percentages are applied. The fee is measured against what the house is worth, not against what the family actually ends up receiving.

Take a Huntington Beach house appraised at $1.5 million with $900,000 still owed on it. The real inheritance is somewhere near $600,000. The statutory compensation is still calculated on the full $1.5 million, which works out to $28,000 for the attorney and $28,000 for the personal representative. That is $56,000 coming out of a $600,000 inheritance, close to a tenth of it, before anyone has paid for a repair or a cleanout.

A family that owns the same house free and clear pays exactly the same $56,000. The fee has nothing to do with wealth and everything to do with the appraisal.

Paula Aragone, CPRES

Put the two families side by side and the rule stops looking technical. One inherits $1.5 million and pays 3.7 percent of it. The other inherits $600,000 and pays 9.3 percent of it. Same house, same statute, very different sting.

What it costs on an Orange County house

Here is the full schedule applied at the price points this market produces. Both columns come from the same statutory brackets, because the attorney and the personal representative are paid identically.

The effective rate falls as the value rises, which is the one piece of good news in the schedule. It does not help the family whose house is worth a million and whose equity is a third of that.

Why the fee is charged twice

Nearly everyone who runs the numbers for the first time runs them once. They find section 10810, work out $19,000 on an $800,000 house, and stop there.

Section 10800 applies the identical percentage schedule to the personal representative.[2] The executor, the administrator, the family member who agreed to handle it: that person is entitled to the same $19,000 the attorney receives.

What the statutory fee does not cover

The percentages pay for ordinary administration. Anything beyond that is billed separately and is not capped by a percentage at all.

Section 10811 lets the court allow the attorney additional compensation for extraordinary services in an amount the court determines is just and reasonable.[4]Section 10801 does the same for the personal representative.[5]

What usually counts as extraordinary

Litigation between heirs. A will contest. Selling a business the decedent owned. Handling a contested creditor claim. Complex tax work. In real estate terms, a sale that turns into a dispute stops being ordinary very quickly.

This is the honest reason the table in section 03 is a floor rather than a ceiling. A family that fights adds a line item with no fixed size.

The costs that sit on top

Beyond the statutory compensation, a California probate carries its own running costs. The filing fee to open the case. The probate referee who appraises the property. Publication in a newspaper of general circulation. Certified copies, bond premiums where a bond is required.

None of these is enormous on its own. Together they are usually a few thousand dollars, and they land before the house has sold.

Why Orange County prices make it worse

The brackets were not drafted with this market in mind. The 2 percent band runs from $200,000 up to $1 million, which across much of the country covers an entire house. Here it covers the first third of one.

A three bedroom in Lake Forest that a family still calls the modest house now appraises past a million, which pushes the estate into the 1 percent band on top of everything underneath it. In Irvine the same thing happens with a tract home a parent bought in the 1990s and never refinanced. Out in Newport Beach and Corona del Mar, estates routinely land above $2.5 million, where the combined statutory compensation clears $76,000 before a listing agreement is ever signed.

I will say plainly what a lot of agents hedge on. For an Orange County family whose main asset is the house, leaving that house outside a trust stopped being a small administrative oversight a long time ago, and treating the paperwork as something to sort out later is usually the expensive choice. I have also watched probate turn out to be the better road for a family, which section 12 comes back to, because that is true as well.

Why you cannot negotiate it upward

People assume a statutory fee is a starting point. It is closer to a ceiling.

Section 10813 states that an agreement between the personal representative and the attorney for higher compensation than the statute provides is void.[3] Not voidable, not subject to court approval. Void.

That cuts both ways for a family. Nobody can quietly agree to pay a probate attorney more than the schedule for ordinary work, which is a real protection. It also means there is no ordinary-course discount to go hunting for, because the number was never the attorney's to set.

When the fee actually gets paid

This is the question families ask once the figure sinks in, and the answer is usually reassuring.

Statutory compensation is paid from the estate, on court approval, generally at the end of administration. When the main asset is a house, that means it comes out of escrow at closing rather than from anyone's bank account up front. Nobody is writing a $56,000 check while the probate is running.

The practical consequence is that the fee reduces what each heir receives at distribution. It does not create a bill during the process, which is why so many families do not take it seriously until the final accounting arrives.

The trust route never touches the schedule

A home titled in a living trust avoids all of it. The successor trustee's authority comes from the trust document itself, so there is no court calendar to wait on and no statutory percentage to pay. In our experience those sales close escrow within 30 to 60 days of listing.

If the house is already in a trust, the work ahead is preparation rather than paperwork, and the six steps every California trustee should take before listing will matter more to the outcome than anything a court would have asked for.

If you are still working out which path you are on, the side by side comparison of a probate sale and a trust sale walks through the whole decision.

The timeline difference

Probate runs on a completely different clock. The California Courts self help guide puts formal probate at 9 to 18 months and adds that it can sometimes take even longer.[7] A crowded court calendar stretches it further, and so does any disagreement among the heirs.

The privacy line matters more than families expect above two million, where a public filing tells every agent in the county exactly what is coming to market and why.

When probate is still the right road

Probate has one feature a trust sale does not. A judge's order ends the argument.

When siblings cannot agree on whether to sell, or when a creditor claim looks likely, the court's involvement is protection rather than friction. I have told families to stay in probate for exactly that reason, knowing to the dollar what the statutory fee was going to cost them. The fee buys finality, and finality is occasionally worth $38,000. I would rather a family pay it once than spend two years litigating against each other and sell the house in worse condition at the end of it.

When the disagreement is the real obstacle, what to do when siblings cannot agree on selling an inherited house is the more useful place to start.

That is the honest version. The statutory fee is not a penalty, it is the price of a court supervising the transfer. The question worth asking is whether this particular family needs the supervision.

What to do before you list

1. Pull the current recorded deed and find out how the house is actually titled. Not what anyone remembers being done, what the document says.
2. If it is held in a trust, get the complete trust instrument and confirm in writing who the successor trustee is.
3. If it is not in a trust, find out whether the personal representative has full or limited authority under the Independent Administration of Estates Act. That single answer changes how the sale gets approved and how long it takes.
4. Get a realistic valuation early, before the referee does. That number is what every percentage on this page runs against.
5. Ask the representative whether they intend to waive their statutory compensation, and have them raise it with their tax advisor rather than deciding on instinct.

Documents worth having in hand

• Current recorded grant deed
• Complete trust instrument with all amendments, if one exists
• The letters issued by the court appointing the representative
• The inventory and appraisal once filed, or the referee's working figure
• Any payoff demand on loans secured by the property