Probate Fees - The Cost Of Probate In California

October 7, 2010 by Mitchell A. Port

EXTRAORDINARY ATTORNEY SERVICES COMPENSATED BY EXTRAORDINARY COMPENSATION

8. CALIFORNIA PROBATE CODE

8.1 Probate Code sections 10801, 10811 - Allowance of additional compensation for "extraordinary services . . . in an amount the court determines is just and reasonable."

8.1.1 Sales or mortgages of real or personal property

8.1.2 Contested or litigated claims against the estate

8.1.3 The defense of a will contested after its admission to probate. In a post-probate contest, the estate may be required to pay the cost of def en se even if the defense is NOT successful, i.e., Section 10801 expenses and Section 10811 expenses can be awarded against and made p ay able from the estate so long as the representative's defense was in GOOD FAITH.

8.1.4 The successful defense of a will contested before its admission to probate

Although expenses in preprobate contests require a "successful defense", the term is construed broadly. It matters not whether the "success" was by judgment after trial OR BY PRETRIAL SETTLEMENT, or whether the representative fails to "win" on all issues. So long as the defense BENE FITTED the estate -- in the sense of preserving decedent's desires and intentions as expressed in the will -- it is "successful".

See Estate of Schuster, 163 CA3d 337, 209 CR 289 (1984) --compensation payable by estate where contest settled by dismissal with prejudice; immaterial that estate did not prevail on challenge to contestant's standing.

8.1.5 Preparation of estate, inheritance, income, sales or other tax returns or the adjustment, litigation, or payment of any of said taxes

8.1.6 Litigation involving estate property

8.1.7 Carrying on of the decedent's business pursuant to COURT ORDER. If not pursuant to Court order, there is no "guarantee" that extraordinary compensation will be approved; the result will likely turn on the circumstances involved and whether continuing the business was profitable to the estate.

Estate of Scherer, 58 CA2d 133, 136 P2d 103 (1943)
Estate of King, 19 C2d 354, 121 P2d 716 (1943)

8.1.8 "Other litigation or special services that are necessary for the executor or administrator to prosecute, defend or perform."

8.2 Probate Code section 8547 - Allowance of compensation to an attorney out of estate funds for extraordinary services to a special administrator

8.3 Probate Code section 10953 - Allowance of compensation for the extraordinary service of filing an accounting for the administration of a deceased, incompetent or absconding representative by his attorney, or the attorney of record for the estate, when such an accounting is required

8.4 Probate Code section 11003 - Recovery of compensation and expenses for "bad faith" contest or opposition to contest

8.4.1 If the court determines that a contest to the representative's account was brought "WITHOUT REASONABLE CAUSE AND IN BAD FAITH", the court may award against the contestant the compensation, and costs of the personal representative, as well as other expenses and costs of litigation, including attorney compensation, incurred to defend the account. The amount so awarded is a charge against the contestant's interest in the estate, and the contestant is personally liable for any amount remaining unsatisfied. (Emphasis added)

8.4.2 Conversely, upon determining that the REPRESENTATIVE'S OPPOSITION to a contest was "WITHOUT REASONABLE CAUSE AND IN BAD FAITH", the court may award the CONTESTANT the costs and other expenses, including attorney compensation, incurred to contest the account. The award is a charge against the compensation or other interest of the personal representative in the estate, and the representative is personally liable and on the bond (if any) for any amount that remains unsatisfied. (Emphasis added)

8.5 Probate Code section 11624 - Costs of preliminary distribution paid by distributee or estate in proportions determined by Court

8.6 Paralegal Services. The above sections (except sections 11003 and 11624) provide that extraordinary compensation for probate counsel may also include compensation for extraordinary services performed by the attorney's PARALEGAL under the direction and supervision of the attorney. The application for such compensation must set forth the "hours spent and services performed by the paralegal.”

8.6.1 It is doubtful that the Legislature intended to equate "legal secretary" work with work performed by a "paralegal" (the Legislature expressly chose the term "paralegal" rather than "legal secretary.") Thus, to justify payment for paralegal services, counsel should set forth IN DETAIL, the paralegal's EXPERIENCE AND CREDENTIALS. See Rule 10.140. Probate Code sections 10811, 8547(d), and 10953(d).

8.6.2 The amount requested for the extraordinary services of the attorney and paralegal COMBINED must not exceed the amount that would be appropriate if the attorney had provided the services WITHOUT paralegal assistance.

For more information, see the California Court Rules and call a qualified probate attorney - call Mitchell A. Port at (310) 559-5259.