Anyone who has been appointed an executor of a deceased estate would agree that the role can be time consuming and require considerable effort. The role comes with legal duties, responsibilities and possible exposure to personal liability.
An executor is required to undertake many tasks including: identifying assets and liabilities, applying for probate, defending the estate from any legal claims, paying liabilities and distributing assets to beneficiaries.
It’s important to note that there is no automatic requirement for the estate to pay an executor for acting in that role, no matter how difficult that role may prove to be!
There are three ways an executor can be paid for their services:
- payment or commission is included as a clause in the Will;
- the beneficiaries of the estate agree to the payment of commission; and
- an application for commission is made to the Supreme Court by the executor.
Clause in the Will
A Will may contain a clause setting out a specific payment to the executor and may specify whether the payment will be in addition to or in place of a separate payment of commission.
Generally, if the Will provides a payment or legacy for an executor it is considered to be in place of commission.
If the appointed executor is a professional, the Will may include a clause allowing the professional to charge their usual hourly rate under certain conditions.
Obtaining consent of beneficiaries
If there is no payment clause in the Will, an executor may seek the consent of all residual beneficiaries provided they are all capable adults able to provide informed consent.
Application to Supreme Court
The process of applying for commission from the Court can be an expensive and time-consuming exercise. It is generally recommended that an executor tries to obtain beneficiary consent, which may help prevent potential delays in finalisation of the estate.
An executor who applies for commission must also provide the Court with the estate accounts as part of the process. The Courts will consider many factors such as the size and complexity of the estate, the work that was completed, the conduct of the executor and the length of time taken in administration of the estate.
There is no predetermined rate at which commission is payable although there is a general guide provided by the Court. The Court will apply discretion in determining if the commission is to be paid as a lump sum or as a percentage rate based on the individual circumstances of the case.
How can a solicitor help?
One of our Wills & Estates solicitors can guide you through every stage of your role as executor, including an application for executor commission. If you would like assistance please contact our Wills & Estates team.