Executors Commission Disputes – What You Need to Know

What is the role of a Will Executor?

• The role of the executor is to put the wishes of the will-maker into effect by collecting assets, paying liabilities and distributing the will-maker’s property to those he or she wished to benefit (beneficiaries).
• Almost all executors are trusted family friends or relatives. The remainder provide executorial services in a professional capacity such as solicitors, accountants and financial advisors (professional executors).

Does an executor have a right to be paid?

No, an executor does not have an automatic right to get a payment which is usually in the form of a commission from a deceased’s estate.

When can an executor claim a commission from a deceased’s estate?

A will executor may only seek a commission if at least one of three prerequisite conditions are met:

• The will contains a clause granting payment of a commission subject to the will-maker giving written informed consent to the inclusion of the clause before signing the will.
• The Victorian Supreme Court makes an order on the application of an executor for payment of a commission for their “pains and troubles”.
• The interested beneficiaries of the estate give the will executor their informed consent to take a commission.

Will-maker written informed consent to a will clause granting payment of an executor commission - What is required?

There is no prescriptive list of requirements.What constitutes informed consent will depend on the circumstances of each case, the nature of the clause in question and the nature of the information given to the will-maker at the time and may include:

Was the will-maker told:

• There was no automatic right for executors to receive a commission so that a commission clause did not need to be included.
• In the absence of a commission clause an executor can still apply to the court and subject to court order be allowed a commission not exceeding 5% for the executor’s “pains and troubles as is just and reasonable”.
• If a commission clause is included, the commission amount may be paid irrespective of the amount of work performed by the executor.
• If a commission clause is included, then an interested beneficiary would only be able to challenge the level of executor’s remuneration via a court application.

What information must an executor provide to each interested beneficiary?

Required information includes:

• The basis on which the executor is to be paid being either in accordance with a clause in the will, or with the consent of the interested beneficiaries or an order of the court.
• The method of calculation of the payment to be made to the executor including whether the payment will be a commission percentage of the assets of the estate and if yes, the applicable commission or percentage or by charging fees.
• The estimated value of the payment to be made to the executor.
• The right of any interested beneficiary to have the payment claimed or charged by the executor reviewed by the court and potentially reduced.

Executor application for commission – What factors does the Court consider?

Factors include:

• The size of the estate.
• Complexity of the will.
• The executor degree of timeliness, efficiency and diligence when completing tasks.
• The amount of work and time to distribute the estate.
• The amount of responsibility involved.
• Problems or hurdles the executor experienced during the process.
• The number of executors sharing the role.
• Communication with the beneficiaries.

What commission amount is fair and reasonable?

Maximum commission claimable is 5% on the gross estate capital.

Typically commission is calculated at 1-2.5% contingent on the size and complexity of the estate.

Get Executor Commission Advice Now

Our executor commission advice lawyers can help you by:

• Providing you advice on your rights to claim or oppose an executor commission.
• Assist you to promptly assess your legal position.
• Represent you in any executor commission court application.

We are Wills and Estate lawyers with substantial experience acting for executors and interested beneficiaries in resolving executor commission disputes.

If you are involved in an executor commission case and are unsure how to proceed, we can assist.

Please contact Andrew O’Bryan or Carl Wilson on 9200 2533 or send us an email.

We have offices at Melbourne, Dandenong and Pakenham.

How to contact our Wills & Estates lawyers

Melbourne Office
259 William Street 
MELBOURNE VIC 3000 
T (03) 9200 2533 
E enquiries@galballyobryan.com.au 

Dandenong Office 
Shop 9/147-151 Foster Street 
DANDENONG VIC 3175 
T (03) 9769 2510 
E dandenong@galballyobryan.com.au 

Pakenham Office 
Shop 1, 15 John Street 
PAKENHAM VIC 3810 
T (03) 5941 7990 
E pakenham@galballyobryan.com.au

The information on this website is of a general nature only and may not reflect recent changes to certain areas of law. It should not be relied upon as a substitute for discussing your situation with a qualified legal practitioner. Contact us for more information.