Law Office of
Estate Planning and Probate
by Kirk Livermont
Probate is a process using the court to implement the desires contained in an individual's last will and testament.
In addition to probate there are other simplified
court procedures to transfer property interests upon death, these include
small estates, under $100,000.00, and Spousal Property Petition.
Probate and these
alternatives are also used when the individual dies without a will, intestate.
Probate is in essence
the gathering of decedent's assets (creating a probate estate), payment of
decedent's debts and distributing the remaining assets to decedent's heirs
either identified in the will (testate) or by statute (intestate).
In the previous article
in this series the probate process and the timing of probate were
discussed in detail. This
article will discuss the costs of probate.
Within a probate there
are four entities, each with associated fees (costs). These include the court, probate referee, attorney and the
the balance of this article the term executor will be used to mean either
the executor or the administrator.
To commence a probate
requires a filing of a petition with the Court for which there is an
$320.00 filing fee. In
addition to this filing fee, there is a $40.00 fee when ever there is a
filing requiring a court hearing, other than the initial hearing.
The probate referee is
an individual appointed by the court to appraise the non-cash assets of
the decedents estate. Their
fee is one-tenth of one per cent of the value of the gross estate
or $75.00 which ever is greater plus costs for mileage and mapping.
The attorney and
executor/administrator are entitled to
statutory fees and potentially extraordinary fees.
The statutory fees are intended to compensate them for the normal
functions performed in all probates.
Statutory fees are the same for the attorney and executor and they
are based upon the value of the gross estate.
These fees are a percentage of the value of the gross estate with
the percentage factor declining as the size of the estate increases.
A good rule of thumb is approximately three percent.
Although the term
statutory fees may imply these fees are fixed by law that is not correct.
Statutory fees are the
maximum fee which may be charged by an attorney.
The executor is free to negotiate a lower fee with the attorney.
Extraordinary fees are
intended to compensate the attorney or executor for unusual functions.
The most common one being the sale of real property.
Extraordinary fees are set by the court after a hearing and they
are usually based upon the number of hours expended multiplied by the
attorney's customary hourly billing rate.
For the executor a reasonable hourly rate is set in order to
determine their extraordinary fee.
Fees paid to the
executor through the probate are taxable income to the executor for
federal and state tax purposes. Consequently,
when the executor is also a heir they may waive their fees and receive
them as a portion of the distribution of the estate tax free.
In addition to these
fees there are costs associated newspaper publication of the notice of
probate ($100.00) and document certification and recording.
Besides probate, there
are alternatives for surviving spouses and for estates under $100,000.00.
Respectively, these are the Spousal Property Petition and Petition
to Determine Succession to Real Property.
These alternative are less costly and may be completed a a few
months. They will be
discussed in detail in the next article in this series.
Kirk Livermont is an
attorney with a private practice located in Independence, California
providing comprehensive estate planning services.
For questions and information about the
Office of Kirk K. Livermont send mail to