Extraordinary Fees for Executors and Attorneys in Probate: Petition and Hearing

In a California probate, the executor and the probate attorney each collect a statutory fee set by percentage of the estate’s value, but when the work goes beyond routine administration either one can petition the court for additional compensation. These are the extraordinary fees in California probate: supplemental payments a judge may approve after reviewing itemized time records, confirming that the services genuinely exceeded ordinary duties, and finding the amount just and reasonable. They are never automatic, and beneficiaries have a formal right to object before the court signs off.

What the Statutory Fee Already Covers

Before asking for more, it helps to know what the baseline buys. Probate Code Sections 10800 and 10810 set identical percentage schedules for the personal representative and the attorney, calculated on the estate’s appraised value plus gains on sales and receipts. On a $1 million estate, that produces $23,000 for the executor and $23,000 for the attorney.¹

That fee compensates ordinary probate work: filing the initial petition, inventorying assets, notifying creditors, distributing property to beneficiaries, and preparing the final accounting. Anything else is where an extraordinary fee request begins.

Services That Qualify as Extraordinary

Probate Code Section 10801 authorizes additional compensation to the personal representative for extraordinary services, and Section 10811 provides the parallel path for the attorney.² Neither section defines the term with a closed list. California Rules of Court, Rule 7.703, instead gives examples that courts regularly approve for attorneys:

Selling estate real property or securing loans against it to pay debts
Suing on behalf of the estate or defending it against claims, including will contests filed after the will is admitted
Representing the executor in removal proceedings or defending the accounting
Extraordinary efforts to locate missing or hidden estate property
Coordinating ancillary administration in other states where the decedent owned property
Accounting for a prior personal representative who died, became incapacitated, or absconded

The list is nonexclusive, so a judge has room to approve other work that clearly exceeds routine administration.³ Section 10801 also lets the executor retain tax counsel, accountants, and auditors to handle complex tax filings or disputes with the IRS, paid directly from estate funds.¹ Operating the decedent’s business to preserve its value pending distribution is another common trigger, since daily management decisions have nothing to do with standard estate administration.

What the Petition Must Contain

The court will not take anyone’s word for it. California Rules of Court, Rule 7.702, requires a detailed factual statement with any petition for extraordinary compensation.⁴ In practice, the petition needs:

Itemized time records showing specific dates, task descriptions, and time spent in increments (typically tenths of an hour)
The hourly rate charged and the total dollar amount requested
An explanation of how each service benefited the estate or its beneficiaries
An estimate of the statutory compensation the estate will pay, if the petition is not filed with the final account

Everything goes into a sworn declaration. Vague entries like “research and correspondence” will not survive scrutiny. Judges want to see exactly what was done, why the estate needed it, and how long a competent professional should have taken. If paralegals performed any extraordinary work, the petition must separately identify their qualifications, hours, and tasks, and show that the total fee does not exceed what the attorney alone would have charged.³

How the Judge Decides the Amount

Extraordinary compensation sits entirely within the court’s discretion. The judge can factor in the statutory compensation already being paid when setting any additional amount.³ Beyond that, the standard factors are:

Complexity of the work and whether it genuinely required specialized expertise
Results achieved, such as a favorable settlement, a successful will defense, or a tax savings
Reasonableness of time spent, measured against what an efficient professional would need
Size and financial context of the estate
The practitioner’s actual skill level and the local market rate

Hourly rates for extraordinary probate work in California commonly fall in the $250 to $500 range, with more specialized practitioners charging higher. The court does not rubber-stamp any figure. If the rate or hours look inflated, the judge can reduce the award without denying the petition outright. Padded time records are the fastest way to see a request cut.

Notice to Beneficiaries and the Hearing

A petition for extraordinary fees is usually filed with the final accounting and petition for distribution, though it can be filed on its own.⁵ Either way, the petitioner must give notice at least 15 days before the hearing to everyone whose inheritance would shrink if the fee is approved, following the procedures in Probate Code Section 1220.⁶ Required recipients include known heirs and devisees, plus the Attorney General if any portion of the estate would escheat to the state.

At the hearing, the judge reviews the petition and any supporting declarations. If a beneficiary objects, the court may require additional testimony or documentation. Once satisfied, the judge issues an order authorizing payment from the estate, less any interim payments already made under Section 10830.

When the Attorney Is Also the Executor

An attorney who also serves as personal representative can collect the executor’s statutory fee without special approval. Collecting attorney fees on top of that is different. Probate Code Section 10804 requires the court to specifically approve dual compensation in advance and to find that the arrangement benefits the estate and serves the best interests of the people who stand to inherit.⁷

This is where attorney-executors most often stumble. Without advance court approval, an attorney who is also the executor risks performing the legal work for free, or facing a successful challenge to the fee petition after the work is done. Do not assume both fee streams flow automatically.

Contingency Fees for Extraordinary Services

The attorney and personal representative can agree to a contingency fee for extraordinary work instead of hourly billing. Section 10811(c) permits this, but with strict conditions. The agreement must be in writing, comply with the Business and Professions Code rules for contingency contracts, and receive court approval after a noticed hearing. The judge must find the contingency reasonable and the arrangement in the estate’s interest.² Absent an emergency, the court should approve the agreement before the attorney starts the contingency-based work.³

The arrangement makes the most sense when the estate needs to pursue litigation with an uncertain outcome, such as recovering a large asset from a third party. If the effort fails, the estate pays nothing beyond statutory fees. If it succeeds, the attorney takes an agreed percentage of the recovery.

Objecting as a Beneficiary

If the requested fees look excessive, an heir or beneficiary can push back. The 15-day notice window exists so you can review the petition before the hearing. Common grounds for objecting include:

The services were not truly extraordinary and should be covered by the statutory fee
The time billed was unreasonable for the work described
The hourly rate is out of step with local practice
The services did not actually benefit the estate

File a written objection with the court and appear at the hearing. The burden of proving the fees are just and reasonable rests on the petitioner, not on you. If the court agrees the amount is too high, it can reduce the award. Some California courts also offer probate mediation as a path to settle a fee dispute without a contested hearing.

Tax Treatment

Extraordinary fees are administration expenses, and the estate chooses where to deduct them. They can be claimed on the federal estate tax return (Form 706) to reduce the taxable estate, or on the estate’s income tax return (Form 1041) to reduce taxable income, but not both. If the personal representative takes the income tax deduction, a written statement must accompany Form 1041 confirming the expense was not claimed on Form 706 and waiving the right to do so.⁸

For the executor personally, any fees received are taxable income. An executor who prefers not to report the income can waive the right to fees entirely, but the waiver must happen within a reasonable time after starting to serve, and conduct throughout the administration must be consistent with an intent to serve without pay.⁹ This matters most when the executor is also a beneficiary who would otherwise inherit the same money tax-free as a distribution rather than as compensation.

1
California Legislative Information. California Code Probate Code 10801 – Compensation of Personal Representative
2
California Legislative Information. California Code Probate Code 10811 – Compensation of Attorney for Extraordinary Services
3
Judicial Branch of California. California Rules of Court – Rule 7.703 Extraordinary Compensation
4
Judicial Branch of California. California Rules of Court – Rule 7.702 Petition for Extraordinary Compensation
5
California Legislative Information. California Code Probate Code 10831 – Petition for Allowance of Compensation
6
California Legislative Information. California Code Probate Code 1220 – Notice of Hearing
7
California Legislative Information. California Code Probate Code 10804 – Compensation of Attorney Serving as Personal Representative
8
Internal Revenue Service. Publication 559, Survivors, Executors, and Administrators
9
Internal Revenue Service. Private Letter Ruling 201024045