Most people facing this question have just learned they are the one who has to settle a parent's or spouse's estate. They may be holding a will they found in a drawer or a stack of bank statements, and relatives may be asking what happens next. Before they call anyone, they want to know what this kind of lawyer actually does, whether the estate needs one, and how the lawyer gets paid.
What a Probate Attorney Does in California
Probate is the court process for transferring property after the owner has died, and in California it runs through the probate division of the Superior Court. The California Courts' Guide to property after someone dies explains that a judge appoints a personal representative, the person responsible for representing the estate. That person collects the property, pays the bills, and then distributes what remains to the people with a legal right to receive it, called heirs or beneficiaries.
The roles stay separate. The personal representative acts for the estate. When a will names that person, the guide notes, they are often called the executor. The attorney advises the personal representative and prepares the court papers.
A probate attorney's work commonly includes:
- filing the petition to open probate in the Superior Court of the county where the person lived;
- giving notice to heirs, beneficiaries and creditors;
- preparing the inventory and appraisal of the estate's property;
- helping the personal representative pay debts and taxes; and
- petitioning the court to distribute what is left.
Some probate attorneys represent a beneficiary or an heir instead of the personal representative. That is a different role from the one this page describes.
When California Law Requires Probate — and When It Does Not
A will does not, by itself, send an estate to court. What matters is how each asset is titled and what it is worth. The California Courts' guide says a person's estate may need to go through probate even if they had a will. Depending on the amount and type of property, a family may or may not need to go to court at all.
Several kinds of property can pass outside of probate. They include property held in a living trust, accounts and policies with a named beneficiary such as life insurance, retirement accounts and payable-on-death accounts, and property held in joint tenancy with right of survivorship. If every asset passes one of these ways, the will may never be filed in a probate case. The guide still says that anyone who finds an original will must deliver it to the court.
For property in the person's name alone, California has simplified procedures, and each one has its own conditions:
- the affidavit for collection or transfer of personal property;
- the petition to determine succession to the decedent's primary residence;
- the affidavit for real property of small value; and
- the spousal or domestic partner property petition.
The dollar limits for these procedures are adjusted over time, and the California Courts publish the current figures. The courts' guide walks a family through gathering information about what the person owned and owed, estimating its value, and checking whether a simple process fits. The paths for settling without full probate are a common next question.
How Probate Attorney Fees Work Under California Law
Families are often surprised that the attorney's ordinary fee in a California probate is set by statute. It is not a number the lawyer simply quotes. Probate Code section 10810 states it plainly:
"(a) Subject to the provisions of this part, for ordinary services the attorney for the personal representative shall receive compensation based on the value of the estate accounted for by the personal representative, as follows: (1) Four percent on the first one hundred thousand dollars ($100,000). (2) Three percent on the next one hundred thousand dollars ($100,000). (3) Two percent on the next eight hundred thousand dollars ($800,000). (4) One percent on the next nine million dollars ($9,000,000). (5) One-half of 1 percent on the next fifteen million dollars ($15,000,000). (6) For all amounts above twenty-five million dollars ($25,000,000), a reasonable amount to be determined by the court."
The value used is not what the family nets. Under Probate Code section 10810, it is the total appraisal of the inventoried property, plus gains over appraisal value on sales, plus receipts, less losses from appraisal value on sales. It is figured "without reference to encumbrances or other obligations on estate property." In practice, a house with a mortgage counts at its appraised value, not its equity.
Work beyond ordinary services is treated differently. Under Probate Code section 10811, the court may allow additional compensation for extraordinary services in an amount it finds just and reasonable. That can include a paralegal's work under an attorney's supervision, and the petition must set out the paralegal's hours and services. The same section allows a contingent fee for extraordinary services only if three conditions are met:
- the agreement is in writing and complies with the requirements Probate Code section 10811 references for contingent fee agreements;
- the court approves the agreement after a noticed hearing; and
- the court finds the agreement just, reasonable and to the advantage of the estate and the people interested in it.
The personal representative's own compensation is a separate amount from the attorney's. The California Courts' guide adds that lawyer's fees can usually be paid from the property in the estate, so the family generally does not pay them out of pocket. For a figure on a specific estate, a probate attorney can apply the schedule to that estate's appraised value.
The Order of Payment in a California Probate Estate
Before anyone inherits, the estate generally pays the expense of running the probate itself, including the attorney's and the personal representative's compensation, though debts owed to the United States or to California keep any preference their own laws give them. After that, the Probate Code lines up the remaining debts in a set priority, beginning with debts secured by a mortgage or other lien, as far as the property securing them can pay them. Near the top are funeral expenses, expenses of the last illness, any family allowance, and certain wage claims, with general creditor claims coming later. These are only the main categories; the Probate Code sets out the complete ranking.
Heirs and beneficiaries receive their shares only after valid claims, taxes and costs of administration are paid. For a family waiting on an inheritance, this explains why distribution comes near the end. It also means that if debts are larger than the estate's assets, lower-priority creditors and beneficiaries may receive nothing.
What Happens If a California Probate Estate Is Not Closed Promptly
The estate does not close by itself when it reaches its second year. The Probate Code sets a time, counted from the issuance of letters, by which the personal representative must either petition for final distribution or report to the court on the status of the administration, and the court may reduce the compensation of the personal representative or the attorney when a delay within their control was not in the best interest of the estate. California law does expect the personal representative to move the administration forward without unreasonable delay. An interested person can ask the court to order the personal representative to act.
Estates can run longer for ordinary reasons. Creditor claims may be in dispute. A house may need to be sold, heirs may be hard to locate, an inventory may be complicated, or tax questions may still be open. Real property often shapes the pace, and the ways probate affects real estate are a natural next question for a family holding a house.
Income the estate earns during administration may raise fiduciary income tax questions. A CPA, an enrolled agent or a tax attorney reviews those.
Where heirs or beneficiaries believe the personal representative is mismanaging or stalling the estate, that is a contested matter handled by an attorney who litigates trust and probate cases.
How to Find a Probate Attorney in California
Licensing comes first. Business and Professions Code section 6125 states: "No person shall practice law in California unless the person is an active licensee of the State Bar." A family can ask any lawyer it meets to confirm an active State Bar license.
The State Bar also certifies legal specialists. Its brochure, What Can an Estate Planning, Trust & Probate Law Certified Specialist Do for You?, lists four things a certified attorney in this field must have done:
- passed a written examination in Estate Planning, Trust & Probate Law;
- demonstrated extensive and varied experience in the field;
- completed additional and ongoing education requirements; and
- been favorably evaluated by other attorneys and judges familiar with their work.
The brochure directs readers to the State Bar's Attorney Search webpage, where the Certified Specialists link lets a person search by specialty. It also states that each attorney sets their own fees. Certification is one credential a family can look for, but it is not a requirement for practicing probate law. Some county bar associations also run lawyer referral services.
When meeting a prospective probate attorney, a family may want to ask:
- How often do you handle estates of this size and type?
- How does the section 10810 schedule apply here, and how would extraordinary work be billed?
- What steps come next, and what is still unknown about how long they may take?
