Feb 26, 2004

Probate filing fees now much higher after Jan. 1

This month's question:

I read recently in the San Jose Mercury News that probate filing fees at the court are now much higher due to the state of California's budget crunch. Is this true? Is there any away around this? The state is really ripping off us consumers.

Martha D.
Almaden Valley

Dear Martha:

I didn't happen to read the article you are referring to, but I do know that probate filing fees at Superior Court have been increased dramatically, and it's no joke. I have a hunch it is due to the state of California budget crunch.

Prior to Jan. 1, 2004, the filing fee at Superior Court for most cases was around $250. This is also called a "first appearance fee."

First of all, one needs to remember that if your property goes through probate, it may include all property you own, unless it passes outside of probate. For Almaden Valley residents, it is not unusual for a residence to be involved as well as substantial other assets.

Secondly, the filing fee at the courthouse is on top of attorneys' fees and executor or personal representative compensation, which can also be substantial, often into the thousands of dollars. More about that topic below.

Effective Jan. 1, 2004, the new probate filing fee at Superior Court (due at the outset of the case) depends on the value of the probate estate. It is on a sliding scale, as follows:

Estate Under Filing Fee

$250,000 $274.50

500,000 346.00

750,000 401.00

1,000,000 621.00

1,500,000 1,171.00

2,000,000 2,271.00

2,500,000 2,821,00

3,500,000 3,921.00

3,500,000,plus 0.22% 3,921 +0.22%

And remember, this is just to file the papers! Check it out for yourself on the Santa Clara County website: http://www.sccsuperiorcourt.org/fees.htm#Probate.

Is there any way around this? Yes, there are actually two ways around this.

One way is to write your state legislator and seek a change in California law. But I wouldn't hold my breath on that one.

The other way around these filing fees is with a living trust. If your residence and other assets passed by means of a living trust, there would be no probate process at all. And the consumer would save not only on the probate filing fee described above, but also on attorneys' fees and executor or personal representative compensation.

Attorneys' fees on a probate estate of $1,000,000 would be 2.3%, or $23,000. (Probate Code §10810.) Again, check it out for yourself at: http://caselaw.lp.findlaw.com/cacodes/prob/1080-10814.html.

Executor/personal representative fees on a probate estate of $1,000,000 would be an additional $23,000. (Probate Code §10800). This can be verified at: http://caselaw.lp.findlaw.com/cacodes/prob/10800-10805.html.

Therefore, the total of attorneys' fees and executor/personal representative compensation in a $1,000,000 probate estate is $46,000. Minimum. (And this is not to mention extraordinary fees and compensation for extra work.)

With a living trust, since all property passes through the trust, most if not all, of this expense is eliminated.

So, Martha, it seems to me that you would want to see your own attorney about a living trust as soon as possible. The savings to you and your family could be very substantial. Good luck.

Donald J. DeVries
Almaden Valley

Donald J. DeVries is an attorney practicing law in Almaden Valley. If you would like him to answer your question in his next Almaden Times column, you can reach him by e-mail at don@almadenvalleylawyers.com , fax at (408) 268-6502, telephone at (408) 268-9500, or mail at 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. Want to learn about a specific legal issue or how DeVries can help you? Visit his web site at www.almadenvalleylawyers.com . Almaden Times columns since 1986 are available there. DeVries writes this column to provide you with general information about important legal matters affecting California residents—not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.