Probate Litigation

Effective January 1, 2012, California has raised the limit for small estates from $100,000 to $150,000. This means that if the value of all the property that would otherwise need to go through probate is not more than $150,000, inheritors can collect the property through simplified probate procedures or by using an affidavit (sworn statement) to collect it without any court proceedings. The limit for transferring real estate of small value (for example, a timeshare or unimproved lot) has also increased -- property valued up to $50,000 can be transferred to inheritors simply by filing an affidavit in superior court. In addition, a surviving spouse will be able to use an affidavit to collect up to $15,000 in salary owed to the deceased spouse.

HOW MUCH DOES PROBATE COST? 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.

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