When a family learns a parent’s house has to go through probate, the next question is usually what it’s going to cost. In California a big chunk of that answer is set by statute, and in Silicon Valley, where even modest homes are worth well over a million dollars, the numbers get large quickly. I want to walk through the real costs of selling a probate home here, with actual math, so executors and heirs can plan instead of being surprised. This is part of my complete guide to selling a house in probate in Santa Clara County.
Key Takeaways
Summary: California sets probate attorney and executor fees by law on the gross value of the estate, so a mortgage doesn’t lower them, and on a $1,800,000 Silicon Valley estate they add up to $62,000. The real estate commission is negotiated separately, though a judge approves it when the sale goes through court confirmation.
How Statutory Fees Are Calculated
Probate Code section 10800 sets the executor’s ordinary compensation, and section 10810 sets the attorney’s using the identical scale. The base is the total value of the estate’s inventory plus gains on sales and other receipts, minus losses on sales, with no deduction for debts or liens. That last point is the one that surprises people. If Dad’s house in Santa Clara is worth $1,600,000 and has a $500,000 reverse mortgage balance, the fee is calculated on $1,600,000, not on the $1,100,000 of equity.
| Gross estate value | Executor | Attorney | Combined |
|---|---|---|---|
| $800,000 | $19,000 | $19,000 | $38,000 |
| $1,200,000 | $25,000 | $25,000 | $50,000 |
| $1,500,000 | $28,000 | $28,000 | $56,000 |
| $1,800,000 | $31,000 | $31,000 | $62,000 |
| $2,500,000 | $38,000 | $38,000 | $76,000 |
| $3,500,000 | $48,000 | $48,000 | $96,000 |
To show the math on the $1,800,000 row: 4 percent of the first $100,000 is $4,000, 3 percent of the next $100,000 is $3,000, 2 percent of the next $800,000 is $16,000, and 1 percent of the remaining $800,000 is $8,000, for $31,000 each.
Extraordinary Fees for Selling Real Estate
The statutory fee covers ordinary administration. The California Rules of Court recognize that certain work, including the sale of real property, can justify additional extraordinary compensation, which the attorney or executor must request from the court and justify with details of the work performed. Whether it’s requested, and how much the court allows, varies from case to case, so ask your attorney at the start how they handle it. Many estate attorneys in our area are upfront about this, and it’s a fair question to ask before you sign an engagement letter.
Should a Family Member Take the Executor Fee?
When the executor is also one of the heirs, taking the fee is often not worth it. The executor fee is taxable income, while an inheritance generally isn’t taxed as income to the heir. If three siblings are splitting the estate equally and the one serving as executor takes a $31,000 fee, that sibling pays income tax on it, and the net effect on the family can be worse than if they had simply waived it. The math changes when one sibling is doing far more of the work, or when the executor isn’t an heir at all, so talk it through with the CPA.
The Other Probate Costs
| Cost | Typical amount |
|---|---|
| Court filing fee for the petition | A few hundred dollars, with a similar fee on some later petitions |
| Newspaper publication of the notice | Usually a few hundred dollars |
| Probate referee’s appraisal fee | One tenth of one percent of the value appraised, so about $1,800 on a $1,800,000 home |
| Probate bond premium, if not waived | An annual premium based on the bond amount, which can be thousands of dollars on a large estate |
| Certified copies of Letters and orders | Modest, but you’ll need several |
| Carrying costs while the house is held | Property tax, insurance, utilities, gardening, and any mortgage payments, often $2,000 to $5,000 a month in this area |
The Real Estate Commission in a Probate Sale
Real estate commissions aren’t set by law, and that’s true in probate too. The listing agreement sets the commission in a full-authority IAEA sale, just as in any other sale. Since the 2024 changes to how buyer agent compensation is handled nationally, the seller’s contribution toward the buyer’s agent is also negotiated separately and in writing. In a court confirmation sale, the judge approves the commission and may divide it between agents when there’s an overbid, following Probate Code sections 10160 through 10166. I cover that split in the probate overbid and confirmation hearing.
What I tell executors is to focus on the net, not the rate. A probate listing takes more work than a typical sale: coordinating with the attorney, managing the cleanout, dealing with multiple heirs, and preparing documentation that protects the executor. An agent who does that well and prices the house right will usually net the estate far more than the difference of half a point in commission.
Does your place need a little work?
Sell As-Is. Sell for More.
No remodel, no lowball investor offer. Most Bay Area sellers net more selling as-is, and I'll show you how to get full market value without fixing a thing.
Show Me How →
A Sample Net Sheet on a San Jose Probate Home
Here is an illustration for a house in San Jose that sells for $1,800,000 in a full-authority sale, where the house is the only significant asset and both the executor and attorney take statutory fees. The commission rate here is an assumption for illustration only.
| Item | Amount |
|---|---|
| Sale price | $1,800,000 |
| Real estate commission (assumed 5 percent total for illustration) | ($90,000) |
| Santa Clara County transfer tax at $1.10 per $1,000 | ($1,980) |
| Escrow, title, and closing costs (estimate) | ($6,000) |
| Cleanout, pre-listing inspection, and light prep (estimate) | ($15,000) |
| Executor statutory fee | ($31,000) |
| Attorney statutory fee | ($31,000) |
| Probate referee, filing, and publication (estimate) | ($3,000) |
| Approximate amount available before debts, carrying costs, and taxes | $1,622,020 |
Some cities add their own transfer tax on top of the county’s, including San Jose’s Measure E tax on sales of $2 million and above, so your numbers will vary by city and price. If the executor waives the fee, the heirs keep another $31,000 in this example.
Full IAEA Authority vs. Court Confirmation
How the house gets sold in probate depends on the authority the court grants the executor under the Independent Administration of Estates Act, and it changes the timeline, the buyer’s experience, and sometimes the commission. Here’s how the two paths compare.
| Full IAEA authority | Limited authority (court confirmation) | |
|---|---|---|
| How the sale is approved | Notice of Proposed Action (form DE-165) to beneficiaries at least 15 days before closing | Report of Sale and Petition for Order Confirming Sale (form DE-260) and a court hearing |
| Minimum price | No court floor, but beneficiaries can object | At least 90% of an appraisal within one year of the hearing (Probate Code §10309) |
| Overbids | None, unless an objection forces court supervision | Yes: at least 10% of the first $10,000 plus 5% of the rest (§10311) |
| Commission | Per the listing agreement | Set by the court; paid only if the sale is confirmed and closes (§10160 and §10161) |
| Santa Clara County local rules | A copy of the Notice of Proposed Action and proof of service must be filed with the court | The confirmation petition must be filed within 30 days after the contract is accepted |
If there’s an overbid in court, the court sets a reasonable commission for the broker who brought the original offer and the broker who brought the winning overbid, and if the original buyer had no agent, the overbidding broker’s fee is capped at half the difference between the two bids unless that broker holds the exclusive listing (Probate Code §10162). The Santa Clara County probate local rules are worth skimming if you’re the executor.
How to Keep Probate Costs Down
- Ask for full IAEA authority and a bond waiver in the will or from the heirs.
- Discuss extraordinary fees with the attorney at the start.
- Decide as a family whether the executor fee makes sense.
- Avoid major renovations, which rarely pay back on a probate sale. See selling a probate house as-is or fixing it up.
- Sell promptly once Letters are issued to limit months of carrying costs.
And for the parents reading this who haven’t yet set up a living trust, the fee table above is the strongest argument I know for doing it. My estate planning primer for Bay Area homeowners is a good place to start. For the full sale process, see my guide to selling a house in probate in Santa Clara County.
Frequently Asked Questions
How much are probate fees on a $1.8 million house in California?
If the house is the only asset, statutory fees are $31,000 for the executor and $31,000 for the attorney, or $62,000 combined, calculated on the gross value without subtracting any mortgage.
Are probate fees based on equity or gross value?
California statutory probate fees are based on the gross value of the estate. Mortgages, reverse mortgages, and other liens aren’t subtracted.
Can an executor waive the fee?
Yes. Many family executors who are also heirs waive the fee because it’s taxable income, while an inheritance generally isn’t taxed as income.
Is the realtor commission set by the probate court?
No statute sets the commission. In a full-authority sale it’s set by the listing agreement. In a court confirmation sale the judge approves it and may split it with an overbidder’s agent.
What does the probate referee charge?
The probate referee’s fee is generally one tenth of one percent of the value of the assets appraised, subject to statutory minimums and maximums.
Sources and Further Reading
- California Courts Self-Help Guide: Property After Someone Dies
- California Probate Code § 10810 (statutory attorney fees)
- California Probate Code § 10160 (when an agent or broker commission is owed)
- IRS Publication 559, Survivors, Executors, and Administrators
Senior Friendly Homes in Silicon Valley South
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
