In a 2023 Santa Barbara County probate, an attorney asked for extraordinary fees on top of a $31,148 statutory fee and backed the request with 21.5 billed hours. The court’s tentative ruling recommended denying the request in full, finding the statutory fee more than sufficient for work routinely performed in estates of that size.
California probate fees follow a statutory formula, but the formula is only the starting point. What counts toward the fee base, how many people share each award, and what a court will approve beyond the schedule all change the final number. The Daily Jones and Company reviews fee petitions and contested estate accountings from Newport Beach. If a fee request in your family’s estate doesn’t add up, ask us to review the petition before the hearing.
How the Statutory Fee Schedule Works
Probate Code section 10800 sets the personal representative’s commission for ordinary services, and section 10810 sets the attorney’s fee on the same sliding scale. Each percentage applies only to its own slice of the estate, not to the whole estate.
| Portion of Fee Base | Rate | Fee on That Portion | Running Total |
| First $100,000 | 4% | $4,000 | $4,000 |
| Next $100,000 | 3% | $3,000 | $7,000 |
| Next $800,000 | 2% | $16,000 | $23,000 |
| Next $9,000,000 | 1% | $90,000 | $113,000 |
| Next $15,000,000 | 0.5% | $75,000 | $188,000 |
| Above $25,000,000 | Set by the court | Reasonable amount | — |
For a $1 million fee base, the math is $4,000 on the first $100,000, $3,000 on the next $100,000, and $16,000 on the next $800,000, for $23,000. That figure is one award. As the Alameda County Superior Court explains, the personal representative and the attorney each receive a statutory fee, so combined ordinary compensation reaches $46,000 if both claim it in full.
What Counts Toward the Fee Base
The fee base is not the decedent’s net worth. Rule 7.705 builds it from the inventory and appraisal, plus receipts excluding principal, plus gains on sales, minus losses on sales. Mortgages and other debts are not subtracted, so a $1 million house carrying a $600,000 loan still produces $23,000 for each award.
Sales adjust the base only by the difference from appraised value. An $800,000 inventory with $10,000 in qualifying receipts and a $50,000 gain on a sale produces an $860,000 fee base, or $20,200 per award. Adding the full sale price on top of the inventory would count the same property twice.
When Beneficiaries Waive the Account
A waiver of account does not waive the fee math. Under Rule 7.705(b), the report must still show how compensation was computed. If the fee is based on any amount other than the inventory value, detailed schedules of receipts, gains, and losses must be included.
One Commission and One Attorney Fee, However Many People Serve
Changing attorneys or naming co-executors does not multiply the statutory fee. Rule 7.704 provides for one commission for the personal representative’s ordinary services and one attorney fee. The court may apportion each among multiple or successive representatives and attorneys, by agreement or according to the services each provided.
Prior representatives and attorneys must receive notice of the fee hearing unless they waived it, signed an allocation agreement, or were already paid under a court order. An attorney who also serves as personal representative generally receives only one fee unless the court approves both in advance.
Extraordinary Fees Are Discretionary
Probate Code section 10811 lets the court award additional attorney compensation for extraordinary services in a just and reasonable amount. Rule 7.703 makes that award discretionary and lets the court weigh the statutory fee already earned. Its examples include selling or financing property, operating the decedent’s business, handling tax audits, litigating to protect the estate, and defending a will contest.
The Fusco ruling shows that discretion at work. The court found nearly all the billed work routine for an estate of that value, noted that no property had to be sold and no creditor claim litigated, and treated the statutory fee as full compensation. It is a tentative ruling rather than binding precedent, but it reflects the scrutiny these requests receive.
What an Extraordinary Fee Petition Must Show
Rule 7.702 requires a statement of facts covering:
- The nature and difficulty of the tasks and the results achieved
- The benefit of the services to the estate
- The amount requested for each category of service
- Each person’s hourly rate and hours spent
- Descriptions detailed enough to show the time was productive
When Probate Fees Can Be Paid
No statutory commission, attorney fee, or extraordinary fee may be paid before a court order authorizes it. Under Rule 7.700, a personal representative who pays or takes compensation early can be surcharged with interest at the legal rate and may face removal.
Fees are usually requested with the petition for final distribution, although the rules allow court-approved payments on account during administration. Reimbursement for costs a representative or attorney advanced, such as filing and publication fees, can be made without a fee order.
Probate Costs Outside the Statutory Schedule
The statutory schedule is not the full cost of probate. A probate referee appraises non-cash assets and, under Probate Code section 8961, receives one-tenth of one percent of the value appraised plus expenses, as the State Controller’s Probate Referees’ Guide describes. Cash assets the representative appraises are excluded from that commission.
Families should also budget for court filing fees, publication, bond premiums when a bond is required, and the cost of insuring and maintaining real property for as long as administration runs. The Stanislaus County court’s calculator checks the arithmetic, but choosing the correct fee base still takes judgment.
Have Daily Jones and Company Review Your Probate Fee Request
A fee petition can be correct, inflated by an overstated fee base, or padded with extraordinary charges the court may not allow. Send the inventory and fee petition to our Newport Beach office for a probate fee review before you sign a consent or the hearing arrives. Our probate and fiduciary litigation team also handles contested accountings when fees are part of a larger dispute.
James D. Daily, Esq.
Founding partner James Daily has more than 30 years of trial experience in probate, trust, and fiduciary litigation. He sets expectations on timeline and cost at the first meeting, because families who understand the statutory fee structure make better decisions throughout administration.
Michael Jones, Esq.
Michael Jones focuses on fraud and breach of fiduciary duty and has worked alongside the FBI, U.S. Marshals, and district attorney offices. He reviews estate accountings for overstated receipts, unexplained disbursements, and fee bases that don’t match the inventory.
Alexandra Jarvis, Esq.
Alexandra Jarvis is a trial attorney and former luxury real estate professional. When an estate sells real property, she evaluates the gain on sale, the escrow disbursements, and whether the sale justifies extraordinary compensation.
Know the Number Before the Hearing
Statutory probate fees are predictable once the fee base is right, the two awards are separated, and every extraordinary charge is measured against Rule 7.702. If you’re a beneficiary questioning a fee request or a personal representative preparing one, contact the Daily Jones and Company. We’ll check the calculation, the supporting schedules, and what the court is likely to approve.
Frequently Asked Questions
Can an executor decline the statutory commission?
Yes. A personal representative can waive or reduce the commission, and some do because the commission is taxable ordinary income while an inheritance generally is not. A representative who is also a major beneficiary should compare the after-tax result before claiming the fee.
Can a court reduce the statutory fee?
Generally not when the fee is properly calculated and requested. The court can reduce compensation if the representative unreasonably delays closing the estate, including when administration runs past one year (18 months if a federal estate tax return is required), or surcharge the representative for mismanagement.
Can I negotiate a lower attorney fee?
Yes. A personal representative can negotiate a reduced fee, particularly for a simple estate with a few high-value assets such as a home. An agreement promising the attorney more than the statutory amount for ordinary services is void.
Are assets in a living trust part of the fee base?
No. Statutory fees are calculated on the probate estate, so assets in a funded trust, joint tenancy with right of survivorship, or accounts with valid beneficiary designations fall outside the calculation. Assets left in the decedent’s name are pulled back in, which is why proper trust and estate planning includes funding the trust.
What if the estate is worth more than $25 million?
Above $25 million, no percentage applies. The court determines a reasonable amount for that portion, and the petition must state the amount requested for it.
Is there a simpler procedure for small estates?
Yes. Probate Code section 13100 lets heirs collect personal property below a statutory threshold by affidavit, and section 13150 provides a simplified petition for certain real property. The threshold is adjusted periodically, so confirm the current figure before relying on it.
How long does probate take before fees are paid?
A routine, uncontested California probate typically runs nine months to more than a year, and fees are usually approved with final distribution after the creditor claim period closes. Contested matters, real property sales, and tax issues extend that timeline.
