Executors of Wills can Claim for their Work

Posted 31-01-2022
Written by admin 101

Executors of estates, particularly those who are not direct beneficiaries of the estate, can now apply for a commission for their work. The RMB Wills and Estates Division explains.

While being appointed as a loved one’s executor can be a great honour, the reality is it can often be a thankless task, particularly where there are complicated assets to be administered, disagreements between beneficiaries or other matters that cause delays.

If you are a beneficiary of an estate, expeditiously fulfilling your duties as an executor will obviously result in the estate assets being distributed and you receiving your entitlement in a timely fashion.

However, if you an executor who is not a beneficiary there is no automatic benefit for carrying out your duties.

Enter the concept of the executor’s commission. In order to address the issue that many executors that do not benefit from an estate would simply renounce their role upon realising their duties, section 86 of the Probate and Administration Act 1898 was implemented to allow an executor to claim commission from an estate.

Executor’s commission is a discretionary payment to the estate administrator to compensate them for their time and effort. This ordinarily would only be sought by an executor who does not stand to benefit from the estate assets. Ultimately pursuing a commission is a matter for the individual executor to consider.

There are two ways an executor may claim a commission:

  1. The first (and generally simplest) way is for all residual beneficiaries of the estate consenting to an agreed amount to be paid to the executor. If all beneficiaries agree, then no further application is needed and the executor can be paid this amount from the estate funds.
  2. If agreement is not reached (or there are issues that prevent this being possible such as a beneficiary not having capacity to consent) and the executor still wants to be paid commission, the executor will need to apply to the NSW Supreme Court (or corresponding jurisdiction), setting out a claim for an amount they believe in the circumstances is just and reasonable. There are suggested amounts that may be referred to on the relevant Supreme Court fact sheet, however this is a guide only and the Court will take into account all relevant matters such as the size and complexity of the estate, diligence of the executor and any complications encountered in the course of administering the estate.

If you have any questions about your current executor or being chosen as a executor, your first step should be to contact our office to arrange a free consultation. You can contact us by by phone or our 'Ask a Question' tool on our website.