Legally Speaking: Is an executor entitled to commissions?

By Linda M. Toga, Esq.

THE FACTS: 

My uncle John named my cousin Mike as executor in his will. Mike lives out of state and decided it would be too burdensome for him to serve as executor. Since I was named as successor executor, I had my attorney file a petition asking that the court issue to me letters testamentary. Mike signed a form renouncing his appointment and consenting to my appointment. Now that I am about to close the estate and receive commissions for serving as executor, Mike is insisting that he is entitled to the commissions since he was my uncle’s first choice for executor.

THE QUESTION:

Is Mike correct?  

THE ANSWER: 

Mike is absolutely wrong. Commissions are designed to compensate an executor for the time and effort he spends marshalling the decedent’s assets, paying the decedent’s debts and distributing the probate assets in accordance with the terms of the decedent’s will. Commissions paid to an executor of an estate are statutory. That means that there is a law (Surrogate’s Court Procedure Act, Section 2307) that sets forth the manner in which the commissions are calculated. That calculation takes into account the value of the estate assets and how those assets are addressed in the will. 

For example, if the decedent owned a house and in his will made a specific bequest of the house to his daughter, the value of the house is not included in the commission calculation. If, however, the decedent did not make a specific bequest of the house and simply stated in his will that his entire estate was to be distributed to his children in equal shares, the value of the house would be included in the commission calculations.

The commissions paid to an executor represent a percentage of the value of the estate so, the larger the estate, the greater the commissions. Commissions are awarded on a sliding scale. Generally an executor earns 5% of the first $100,000 of the value of the estate, 4% on the next $200,000 of the value of the estate and so on. 

The percentage on the value of the estate decreases as the value of the estate increases. Calculating commissions is a bit involved since the executor has to take into consideration the value of assets he receives as well as the value of assets paid out by the estate. Those figures may not be the same if, for example, the decedent’s investments lose significant value during the administration of the estate. Commissions paid to an executor are considered income and are subject to income tax. 

Although Surrogate’s Court Procedure Act, Section 2307 gives the executor the right to take commissions, it is not a requirement and it is not uncommon for close family members of the decedent who are also beneficiaries under the will to forego commissions. Doing so results in all of the beneficiaries who are entitled to a specific share of the estate to get a little more. 

That being said, in situations where there are beneficiaries that are likely to be uncooperative, I often recommend that the executor advise the beneficiaries that his decision about taking commissions is dependent on their conduct. Knowing they may get a bit more from the estate if they help rather than hinder the executor is usually enough to get cooperation.

Because of the complexities involved in probating an estate and calculating executor commissions, it is prudent for the person named as executor in a will to retain an experienced attorney to assist with the process. 

Linda M. Toga, Esq provides legal services in the areas of estate planning and administration, real estate, small business services and litigation. She is available for email and phone consultations. Call 631-444-5605 or email Ms. Toga at [email protected].