The State of California imposed a graduated probate filing fee structure based on the value of the probate estate. These fees could be quite substantial. We have filed probate petitions where the filing fees were multiple six-figure amounts. In Estate of Pierre P. Claeyssens, the California Court of Appeal for the Second Appellate District held that this fee structure is prohibited by Article II, Section 10(c) of the California Constitution, which provides that the legislature may not impose an estate or inheritance tax. This provision of California’s Constitution came about as a result of Proposition 6 in 1982, which was adopted to abolish the California inheritance tax. The court referred to the graduated filing fee as “a tax masquerading as a filing fee.” Since the case was decided, the California Superior Court for the County of Los Angeles has announced that henceforth a filing fee of only $320 will be required.
Despite the elimination of the graduated fee, there are still many reasons why high net worth families should not subject their assets to probate, at least in California. The biggest detriment presented by a probate proceeding is the need to file an inventory of the estate’s assets and the attendant loss of privacy, since court probate files are publicly accessible. High net worth families, at least in California, should generally hold their primary assets in a revocable living trust. Living trusts are not as popular in New York, where the probate process is more streamlined than it is in California.