What Is Probate?
Probate is the court-supervised process for distributing a deceased person’s assets when those assets were not held in a trust, did not have a named beneficiary, and were not held in joint tenancy. In California, probate is required when the deceased person’s qualifying assets exceed $208,850.
Probate is public. It is slow — typically 9 to 18 months, if things go smoothly. And it is expensive.
How Much Does Probate Cost in California?
California probate attorney fees are set by statute under Probate Code §10800. They’re calculated as a percentage of the gross value of the estate — not the net, and regardless of any mortgage:
• 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
The executor receives the same fee. On a $1,000,000 estate: $23,000 in attorney fees + $23,000 in executor fees = $46,000 in statutory fees before court costs and other expenses.
If your Bay Area home is worth $1.5 million with a $700,000 mortgage, the fees are calculated on $1.5 million. The mortgage is irrelevant. You can use our probate calculator to estimate the attorney and executor fees should you need to probate the decedent’s estate.
In addition to the statutory executor and attorney fees, probate will have other fees: filing fees, newspaper notice publication fees, real estate appraiser fees, etc. While the attorney and executor fees get paid directly out of the probate estate at the end of the process, attorneys generally ask for a few thousand dollars up front to cover these other costs and expenses.
Trust Administration: The Private Alternative
If the deceased had a revocable living trust, their estate is settled privately — in an attorney’s office, without court involvement, without the public record, and without the statutory fee schedule. Most trust administrations are completed within four to nine months.
How Modlin Legal Can Help
Marina Modlin has been handling California probate and trust administration since 2010. Whether you need help probating assets, doing the trust administration process for a revocable trust, or both – she’d be happy to guide you.
Frequently Asked Questions
Does a will avoid probate in California?
No. Assets that pass through a will must still go through probate. Only a revocable living trust — or other non-probate transfers like beneficiary designations — can avoid probate.
“My mom just died. She had a trust but I found an account that wasn’t in it. What do I do?”
This is one of the most common situations families face after a loved one dies — and it’s more manageable than it feels in the moment.
When someone dies with a revocable living trust, assets that were never transferred into the trust can’t be distributed by the successor trustee. A forgotten bank account, a brokerage account opened after the trust was signed, a house that was accidentally left out — these are “outside” the trust and need to be handled separately.
There are legal procedures available to transfer these assets to the right people without necessarily going through full probate. What’s available depends on the asset and the circumstances.
The most important thing to do right now: don’t move the money, don’t close the account, and contact an estate planning or probate attorney as soon as possible. California law imposes deadlines on successor trustees that start running from the date of death.
Modlin Legal handles exactly this situation. Marina will assess what’s inside and outside the trust and explain your options clearly.
Set up a free consultation today