The graduated court filing fee for probate matters was instituted effective August 13, 2003. It has changed several times over the years. The base fee was the same as other civil matters for estates with assets of not more than $250,000. For estates over that amount, as shown on the inventories filed in the estate, there was a surcharge.

The approximate filing fees charged, were the following, depending on the date of filing of the initial petition:

August 17, 2003 to December 31, 2003	$ 244.50
January 1, 2004 to June 30, 2004	271.50
July 1, 2004 to December 31, 2004	272.50
2005	274.50
2006	320.00
2007	320.00
2008	320.00

The filing fees for 2003 and 2004 may vary slightly because some courts added additional charges. Since January 1, 2006, the initial fee has been $320.00.

On March 27, 2008, the Second District Court of Appeal held In Re Estate of Claeyssens (161 CA 4th 465) that the graduated filing fee was a substitute for a death tax, which is unconstitutional in California. The excess fees collected were illegal and therefore must be refunded.

Each county Superior Court is setting up rules regarding the procedure for handling the refunds. Unfortunately, it is not a simple matter, such as filing a claim and getting a check. Most courts require a court order, which may mean a petition has to be filed and set for hearing and a notice given various parties. If the estate is still open, a court order for refund may be obtained when the petition is filed to conclude the estate. If the estate is closed and assets distributed, it will probably be necessary to petition the court in order to obtain the refund.

Since each county Superior Court is handling this in a different manner, anyone who is a personal representative and has paid an excess fee should discuss this with the attorney who represented them in the probate matter. In some cases, where the refund is small, it may be simpler and cheaper to forget it.