Being named in a relative or friend's will as an executor is a decision that should be considered carefully, both by the testator and the proposed executor.
When accepted, the role makes you responsible to administer the estate of the deceased as wished by them through the terms of their will and the Succession Act (Qld) 1981.
While many people are happy to take on this role, it is one that requires substantial work, and you as the executor could be held personally liable if something goes wrong with the administration of the estate.
During the process of administering the estate, often executors find themselves wondering, "can I get paid for this?"
There are three ways an executor can receive commission for work they undertake in connection with administering the estate of the deceased;
- Firstly, if the will of the deceased provides for the executor to receive a payment or fee,
- Secondly, by agreement from the beneficiaries of the estate, and
- The third option is to apply to the Supreme Court of Queensland under section 68 of the Succession Act (Qld) 1981. The court has the discretion to authorise a payment of remuneration to the executor for his or her services as it sees fit, and may attach conditions to the payment.
The discretion will be exercised by the court in circumstances where the estate was complex and required significant work to administer.
In considering the amount of commission to grant, the court will consider what would be reasonable in the circumstances of the work undertaken by the executor.
To establish his or her claim, the executor must file, pursuant to section 657C of the Uniform Civil Procedure Rules 1999 (Qld), an affidavit setting out a number of requirements including, the commission sought and the justification for that amount.
In deciding the application, the court will have regard to the matters set out in section 657E of the Uniform Civil Procedure Rules 1999 (Qld) which include the efficiency of the administration of the estate. Commission can be refused in a number of circumstances, including where the executor delayed administering the estate.
The range that can be granted by the court is not fixed, however, the court may avoid applying percentages that result in an award that is unequal to the work performed.
For instance, in Re Estate of Celestino Ghidella [2005] QSC 106, a lower range was awarded to the applicant as much of the work was completed by the estate's lawyers.
In a similar vein, where an estate is simple to administer but very valuable, a lower percentage may be applied to accurately reflect the modest demands of the executorship.
From a practical point of view, if you have been appointed the executor of an estate you should keep a record of the tasks you undertake and the hours you spend administering the estate.
You should also keep a list of any expenses you have incurred.
This will help you negotiate with the beneficiaries if you seek their consent to be paid a commission, and will also form the basis of your application to the court in the event you choose to apply under section 68.
The role of executor can be a complex and time-consuming task, therefore if you believe you have efficiently and effectively performed your role it may be worth seeking commission for the responsibility you have undertaken on the behalf of the deceased.
The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.
