On this page
- The personal representative and the estate's attorney are each paid on one statutory schedule, set out in Probate Code sections 10800 and 10810, starting at 4 percent of the first $100,000.
- The schedule is applied to the inventory value plus gains on sales and receipts, less losses on sales. A loan against the building is never subtracted.
- Work beyond the ordinary, such as the attorney's legal work on a sale, can earn an extraordinary fee in whatever amount the court finds just and reasonable.
- Neither fee is paid until the court allows it, and that holds under full authority too.
How are the personal representative and the attorney paid?
Both are paid on a schedule written into the Probate Code, and it is the same schedule for each. Section 10800 sets the personal representative's compensation for ordinary services, and section 10810 sets the attorney's. Each is a percentage of one figure, the value of the estate the personal representative accounts for, and the percentage steps down as that figure rises.
| Part of the estate value | Rate | Fee on that part | Total at the top of the band |
|---|---|---|---|
| First $100,000 | 4 percent | $4,000 | $4,000 |
| Next $100,000 | 3 percent | $3,000 | $7,000 |
| Next $800,000 | 2 percent | $16,000 | $23,000 |
| Next $9,000,000 | 1 percent | $90,000 | $113,000 |
| Next $15,000,000 | One half of 1 percent | $75,000 | $188,000 |
| Above $25,000,000 | A reasonable amount the court determines | Set by the court | Set by the court |
An estate figured at exactly $1,000,000 produces $23,000 for the personal representative and another $23,000 for the attorney, $46,000 between them before anything extraordinary.
Neither fee is taken on anyone's own say-so. Probate Code section 10501 requires court supervision for allowing the personal representative's compensation and the attorney's, even when the court granted full authority and the building itself can be sold without a hearing.
What value is the fee figured on?
The fee is figured on a gross number built from the estate's own records. Section 10800(b) starts with the total of the inventory and appraisal, adds any gains over the appraised value on sales and any receipts, and takes off any losses from the appraised value on sales. It does all of this "without reference to encumbrances or other obligations on estate property," so a mortgage never comes off. Neither does any other lien.
For an estate that owns an apartment building, each piece has a source you will see in the file:
- The building's inventory figure is its value at the date of death, as the probate referee appraises it.
- A sale above that appraisal is a gain and raises the base. A sale below it is a loss and comes off.
- Receipts are what the estate takes in while the case is open, and an estate that holds a rental building collects rent every month.
- The loan appears nowhere. A building appraised at $2,500,000 counts as $2,500,000 whether it is owned free and clear or carries a $2,000,000 mortgage.
So a heavily financed building can produce a fee that looks large next to the equity the heirs will receive. One way to see the logic is that the personal representative insures, manages and sells the whole building, loan or no loan.
A worked example with a loan on the building
Every number in this example is made up to show the arithmetic. None of it is a forecast for any estate.
Say the inventory lists a building appraised at $3,000,000 and an estate bank account of $150,000, and a lender holds a $1,800,000 loan on the building. While the case is open the estate collects $180,000 in rent. It then sells the building for $3,200,000, which is $200,000 above the appraisal.
| Step | Amount |
|---|---|
| Inventory and appraisal total, building and bank account | $3,150,000 |
| Plus the gain over appraisal on the sale | $200,000 |
| Plus receipts, here the rent collected | $180,000 |
| Less losses on sales | $0 |
| The $1,800,000 loan | Not counted |
| Value the fee is figured on | $3,530,000 |
Nothing comes off for the loan. Run $3,530,000 through the schedule. Its first $1,000,000 produces $23,000, and the remaining $2,530,000 sits in the 1 percent band, adding $25,300. That makes the personal representative's statutory fee $48,300. The attorney's fee is the same. The estate pays $96,600 for the two.
Now take the loan off, which the statute does not allow, to see what it would have changed. $3,530,000 less $1,800,000 is $1,730,000, and the schedule on that is $30,300 each, which is $18,000 less per fee and $36,000 less for both. Had the building sold for $2,900,000 instead, the $100,000 shortfall would have come off the base as a loss.
To run your own estate's figure, build its base the way the table does and enter that one number in the calculator below. It returns the personal representative's statutory fee, the same figure for the attorney, the two added together, and what each band of the schedule contributes. For a base above $25,000,000 it computes the schedule through $25,000,000 and tells you that the court sets the rest. Enter the base itself. The building's equity is the wrong number, and so is the sale price on its own.
Statutory probate fees
Your numbers- Personal representative
- -
- Estate attorney
- -
- Both together
- -
- 4% of the first $100,000
- -
- 3% of the next $100,000
- -
- 2% of the next $800,000
- -
- 1% of the next $9,000,000
- -
- 0.5% of the next $15,000,000
- -
Ordinary compensation under Probate Code sections 10800 and 10810, each figured on the same value. Extraordinary fees, a will that sets compensation, and a waiver all change the real number.
Its answer covers the two statutory fees only. Extraordinary fees, the referee's commission and the broker's commission sit outside it.
When can the fees go above the schedule?
Ordinary work is what the schedule pays for, and the Probate Code lets the court pay for more. For extraordinary services, section 10801 allows the personal representative additional compensation and section 10811 does the same for the attorney, in each case in an amount the court determines is just and reasonable.
California's Rules of Court give examples. Rule 7.703 lists extraordinary services by the attorney, and the first item on the list is legal services in connection with the sale of property held in the estate. Securing a loan to pay estate debts is on it, and so is litigation undertaken to benefit or protect the estate. The list is nonexclusive. The court decides what else qualifies.
For an estate that sells its building, expect the attorney's sale work to be a candidate for an extraordinary fee on top of the statutory one. The same rule reaches contingent fees too. An agreement to pay the attorney a contingent fee for extraordinary work has to be in writing, and the court has to approve it. Ask the attorney at the start what extraordinary work they foresee, because that is the one part of the cost the schedule cannot tell you in advance.
What if the will sets the executor's pay?
Then the will's figure replaces the schedule for the personal representative. Section 10802 makes the compensation a will provides the full and only compensation for the personal representative's services. An executor the will holds to a flat sum, or to less than the schedule, is paid that.
Section 10802 also lets the personal representative petition to be relieved of the provision. If the court finds that a larger amount is to the advantage of the estate and in the best interest of the people interested in it, the court may authorize more than the will allows. Read the will's compensation clause early, because it decides what your own work pays.
What else does the estate pay when it sells?
A probate referee is paid one tenth of one percent of the value the referee appraises, never less than $75 and, unless the court allows more, never more than $10,000.
A broker's commission is a separate cost, and the fee schedule has nothing to do with it. In a court-confirmed sale the court approves the commission under Probate Code sections 10160 through 10168, and those sections also decide how it is split when an overbid wins. Under full authority, section 10585 requires the Notice of Proposed Action to state the commission or how it will be calculated, so every heir who receives the notice sees it before the sale.
How the base is figured for your estate, and whether a given task counts as extraordinary, are questions for the estate's attorney and, in the end, the judge. Shaya Lowenstein is a real estate agent and is not a lawyer, so he does not advise on fees. What he can give you is an estimate of what the building will sell for, and since a price above or below the appraisal moves the base, the attorney can use it before running the numbers.