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8. How are the Estate's Representative and Attorney paid?

Both the estate's representative and the attorney are paid an amount known as a statutory fee. This is a maximum fee that can be paid to the attorney and the representative. The fee is based on the gross value of the assets of the decedent's estate as listed in the Inventory and Appraisement, plus any gains on sales and income to the estate. The fee is provided by law in Probate Code Section 10800 for the representative and Probate Code Section 10810 for the attorney. The fee is based on a sliding scale of percentages of the value of the estate. For example, if the total estate is worth $1,000,000, the fee structure would look like this:

4% of the first $100,000 = $4,000 +
3% of the next $100,000 = $3,000 +
2% of the next $800,000 = $16,000
Total estate $1,000,000
Total fee $23,000
The smaller the estate, the smaller the fee. For example, the fee on a $100,000 estate would be $4,000 which would equal 4% of the first $100,000

Additionally, the attorney may be entitled to extraordinary attorney fees which relate to the attorneys' involvement in sales of property during the estate, as petitions and court hearings must be held in order to do sell estate real property; the work on the Federal Estate Tax form 706; and services related to defending the estate from lawsuits, will contests, etc. The attorney requests these amounts from the court in the Petition for Final Distribution and the court awards a fee based upon a reasonable hourly rate for the type of services performed. It is generally very rare for the executor or administrator of an estate to receive an extraordinary fee. The fees of the representative and attorney are paid from the assets of the estate prior to any distribution of a assets to the beneficiaries of the estate.

Another issue that commonly arises is where the estate's probate attorney is not doing a satisfactory job in probating the estate. Time is dragging on, deadlines are missed, phone calls are not returned, etc. The representative of the estate may become concerned that these delays that are caused by the attorney for the estate may lead the beneficiaries or heirs of the estate to blame the representative and bring a Petition to Remove the Representative. The two most commonly asked questions are: (1) Am I allowed to fire my attorney, and if so, how?; and (2) If I hire a new attorney, will I have to pay a double fee? The answer to the first question is that it is very easy to replace an attorney in any court matter, probate, civil or otherwise. The court even has a pre-printed form known as a Substitution of Attorney. The new attorney will generally have the representative sign the document and will forward the form to the prior attorney, who will sign and return the form to the new attorney. This avoids any uncomfortable discussions between the representative and the prior attorney. The form gets filed with the court and all heirs and/or beneficiaries get a copy. As to the second question, the answer is no, the statutory attorney fee will not increase if a second attorney is brought into the matter to replace the first attorney. The statutory fee will simply be split between the attorneys, either by agreement, or by the court at time of distribution of the estate.

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Copyright © 2002
by Nancy Pack-Rayman and Michael Norman Saleman
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