2026-11-02 · 4 min read · Orange County
How Are Executor and Attorney Fees Set in a California Probate?
The short answer
How are executor and attorney fees set in a California probate? For ordinary work, California law sets both fees as a percentage of the estate's value: 4 percent of the first $100,000, 3 percent of the next $100,000, 2 percent of the next $800,000, and smaller percentages above that. The executor and the attorney can each receive that amount. Mortgages are not subtracted, and the court must approve fees before they're paid.
Who Gets Paid in a Probate?
In a formal probate, the court appoints a personal representative to handle the estate. That's the executor named in a will, or an administrator if there's no will. Most personal representatives hire a probate attorney.
I'm Jeanette Nelson, a REALTOR® with Jeanette Nelson Real Estate, Keller Williams Realty, serving Orange County, Huntington Beach, Costa Mesa, Fountain Valley, and surrounding areas. When families settle an estate that includes a home, they often ask what probate will cost. Knowing how fees work helps your family plan.
This is general information, not legal advice. A probate attorney can explain how the rules apply to your family's estate.
What Are the Statutory Percentages?
The Orange County Superior Court's self-help page explains that California law allows both the personal representative and the attorney to take a statutory fee for ordinary services. The schedule is:
- 4 percent of the first $100,000
- 3 percent of the next $100,000
- 2 percent of the next $800,000
- 1 percent of the next $9,000,000
- One-half of 1 percent of the next $15,000,000
- A reasonable amount set by the court above $25,000,000
These come from California Probate Code Section 10800 for the personal representative, and the attorney's fee follows the same schedule.
The court's page gives an example. On a $1 million estate, the statutory fee is $23,000. That's $4,000, plus $3,000, plus $16,000. The attorney may receive the same amount.
Why Doesn't the Mortgage Lower the Fees?
This surprises many families. The court's page says mortgages and other debts are not considered when computing the fee base.
The base is generally the appraised value of the estate's property, plus gains on sales and income received during the probate, less losses. So a home worth $1 million with a large loan still counts at its appraised value for the fee calculation.
The appraised value often comes from the probate referee, who values non-cash assets for the inventory.
Can Fees Be Higher or Lower?
Extraordinary fees. The court's page explains that additional pay, called an extraordinary fee, may be allowed for extra work. Examples it lists include sales of real property, litigation of claims and will contests. The court decides what's just and reasonable, and payment is not guaranteed.
Lower fees. A personal representative can choose not to take a fee, or ask for less than the statutory amount. The court's page notes that fees are taxable income to the personal representative, and inheritances generally are not. Some families factor that in when a family member serves.
The personal representative can also negotiate a lower attorney fee, especially for a simple estate. The court's page says an agreement for higher compensation than the law allows is void.
One person, two roles. If the attorney also serves as personal representative, the court's page says only one fee can be paid unless the court approves both in advance. Co-executors divide the fee among themselves.
When Are the Fees Paid?
The court's page says a court order is required before any fees are paid to the personal representative or the attorney. That usually happens near the end of the case, with the petition for final distribution.
California Rule of Court 7.705 requires that the fee request show how the statutory amount was calculated. For timing, see How Long Does Probate Take in California, and Can I Sell the House During It?
How Does This Affect Selling the House?
Fees are paid from the estate, often from the sale proceeds if the home is the main asset. The real estate commission is a separate cost of sale, and in many probate sales the court reviews it.
These may help as you plan:
Let's Start With a Conversation
If your family is settling an estate with a home in it, I'd love to have a private planning conversation with you about the sale and how it fits with the probate process. Call or text me at 714.366.8575 | DRE: 01397168, or contact me. Jeanette Nelson is a REALTOR® with Jeanette Nelson Real Estate, Keller Williams Realty, serving Orange County, Huntington Beach, Costa Mesa, Fountain Valley, and surrounding areas.
Frequently asked questions
Are probate attorney fees a percentage in California?
Yes, for ordinary services. They follow the same statutory schedule as the personal representative's fee: 4, 3 and 2 percent on the first $1 million, with lower rates above that.
Does the mortgage reduce probate fees?
No. The Orange County court's self-help page says mortgages and other debts are not considered in computing the fee base.
Can the executor refuse the fee?
Yes. A personal representative can decline the fee or ask for less. Fees are taxable income to the person who receives them.
Can an attorney charge more for selling the house?
The attorney can ask the court for an extraordinary fee for work such as a real property sale. The court decides whether to allow it.
Who approves probate fees?
The court. A court order is required before fees are paid to the personal representative or the attorney.