Calculating Statutory Fees for the Petition

I recently met with Emily, a woman devastated to learn her mother’s estate was significantly smaller than she’d believed. Emily had meticulously prepared the probate petition, only to discover the statutory fees alone would consume nearly a third of the remaining assets. This wasn’t due to any error on her part, but a misunderstanding of how those fees are calculated – a mistake I see far too often in my 35+ years as both an Estate Planning Attorney and a CPA. It’s a harsh lesson, and one I aim to prevent for my clients.

What Assets Are Included in the Fee Calculation?

The biggest misconception I encounter is believing that probate fees are based solely on the net value of the estate – what’s left after debts and mortgages are paid. That’s simply not how it works. Probate Code § 10800 clearly states that fees are not calculated on the ‘net’ value (equity), but on the ‘estate accounted for’ (gross value of assets + gains – losses). A house worth $1M with a $900k mortgage still generates fees based on the full $1M value. This means even if your loved one had substantial debts, the initial fee assessment will be based on the total gross value of their assets.

This is where my CPA background is invaluable. Understanding this distinction is crucial for minimizing potential tax implications, particularly the step-up in basis, capital gains, and accurate valuation of assets. We routinely structure estates to proactively address these concerns, saving clients significant sums in the long run.

How Are Those Fees Actually Calculated?

California probate statutory fees are determined by a sliding scale, based on the gross value of the estate. Here’s a breakdown:

0- $100,000: 4% of the value
$100,001 – $500,000: 3% of the value
$500,001 – $1,000,000: 2% of the value
$1,000,001 – $5,000,000: 1% of the value
Over $5,000,000: 0.5% of the value

So, for an estate valued at $1.2 million, the statutory fees would be:

4% of $100,000 = $4,000
3% of $400,000 = $12,000
2% of $500,000 = $10,000
1% of $200,000 = $2,000

Total: $28,000

It’s important to remember these are statutory fees, meaning they are set by law and generally non-negotiable. However, an experienced attorney can often identify strategies to minimize the gross value of the estate – for example, through proper titling of assets or utilization of trusts – thereby reducing the overall fee burden.

What About Attorney Fees on Top of Statutory Fees?

Statutory fees are paid to the court, but that’s not all you’ll pay. You also need to factor in attorney fees. While statutory fees are fixed, attorney fees are negotiable and depend on the complexity of the estate, the amount of work involved, and the attorney’s experience. Most probate attorneys work on an hourly basis, and the rates can vary significantly.

Strategic Planning: A skilled attorney can advise on estate planning techniques before death to minimize future probate costs.
Asset Valuation: Accurate valuation is key. Overvaluing can lead to tax issues; undervaluing can invite scrutiny.
Debt Resolution: Properly handling creditors’ claims prevents legal challenges.

What If There Isn’t Enough Cash in the Estate to Pay Everything?

This is a surprisingly common problem. If the estate lacks sufficient liquid assets to cover both statutory fees and other expenses (like creditor claims and attorney fees), the executor may need to seek court authorization to sell assets. This can be a complex process and may require a petition for order for sale.

However, a proactive strategy is to request authority to withhold a cash reserve (typically $2,000–$5,000) in the initial petition to pay for final closing costs, tax preparation fees, and county recording fees. Any unused amount is distributed later without a new court order.

What Happens When the Estate Is Closed?

Remember, you cannot distribute assets until the Judge signs the Judgment of Final Distribution. Once signed, you must record certified copies for real estate and write checks for cash gifts. Only after distribution do you file receipts to get discharged. The probate case is not actually ‘closed’ until the judge signs the Decree of Final Discharge (Judicial Council Form DE-295). This document releases the executor from liability. Without it, the executor remains on the hook for the estate indefinitely. If the estate is not closed within 12 months (or 18 months if a federal tax return is involved), the executor must file a Status Report explaining the delay. Failure to do so can result in a reduction of the executor’s statutory fees.

What failures trigger contested proceedings and court intervention in California probate administration?

California probate is designed to provide court-supervised transfer of property, yet cases often break down when authority is unclear, required steps are missed, or disputes arise over assets, notice, and fiduciary conduct. When the process is misunderstood, families can face avoidable delay, escalating conflict, and increased exposure to creditor issues, hearings, or litigation before the estate can close.

To initiate the case correctly, you must connect the filing steps through probate petition process, confirm the location using proper probate venue, and ensure no interested parties are missed by strictly following probate notice requirements rules.

A stable probate administration outcome usually follows from clarity, consistency, and readiness for court review, especially when multiple stakeholders and competing interpretations are involved. When documentation supports enforcement and timelines are respected, families are less likely to face preventable escalation.

Verified Authority on Closing a California Estate

• Petition for Final Distribution: California Probate Code § 11600
  This is the “finish line” document. It tells the court what bills have been paid, what assets remain, and exactly who gets what according to the Will or intestacy laws. The court must approve this petition before a single dollar is distributed to heirs.
• Waiver of Account: California Probate Code § 10954 (Waiver)
  A powerful tool for speeding up the closing process. If all beneficiaries are competent adults and agree in writing, the executor can skip the detailed (and costly) formal financial accounting. This often saves the estate thousands of dollars in legal and accounting fees.
• Executor & Attorney Fees: California Probate Code § 10810 (Attorney Compensation)
  Just like the executor, the probate attorney is entitled to statutory fees set by law, not by hourly billing. These fees are requested in the final petition and are paid only after the judge signs the final order.
• Receipt on Distribution: California Probate Code § 11751
  Proof is required. After the judge orders distribution, the executor must deliver the assets and obtain a signed Receipt of Distribution from every beneficiary. These receipts must be filed with the court to prove the judge’s order was followed.
• Final Discharge: Judicial Council Form DE-295 (Ex Parte Petition for Final Discharge)
  The final step often forgotten. Once all receipts are filed, the executor must file this form to be “discharged.” This order formally relieves the executor of their duties and cancels the bond, ending their legal liability.
• Tax Clearance: Franchise Tax Board (Estates & Trusts)
  Before closing, the executor must ensure all personal income taxes of the decedent and fiduciary income taxes of the estate are paid. While a formal tax clearance certificate is not always required for smaller estates, personal liability for unpaid taxes remains a risk for the executor.