Payment for Executors

In New South Wales, an executor generally cannot take fees without the consent of the beneficiaries or a specific clause in the will allowing for such payment. The executor’s right to claim commission (a payment for their work) is not automatic and depends on various factors.

Here’s a more detailed explanation:

1. Will Provisions:

If the Will includes a “charging clause” that specifically allows the executor to be paid for their services, they can typically claim the commission as outlined in the Will.

If the Will doesn’t have a charging clause, the executor can still potentially claim commission, but it requires either the consent of the beneficiaries or a court order.

2. Beneficiaries’ Consent:

If there’s no charging clause in the Will, the executor needs the written and fully informed consent of all the beneficiaries to claim a commission.

For consent to be valid, beneficiaries must:

• • Be of legal age (18 years or older).
  • Be fully informed about the work the executor has done and the proposed commission.
  • Be advised they can seek independent legal advice.
  • Be informed they can ask the court to assess the commission claim.

3. Court Order:

If the beneficiaries don’t agree to a commission, or if there are legal complications or disputes, the executor can apply to the Supreme Court for an order to be paid a commission.

The court will assess the amount of the commission based on the “pains and trouble” the executor has experienced in administering the estate.

4. Fiduciary Duty:

Executors have a fiduciary duty to act in the best interests of the estate and its beneficiaries.

They must act honestly and avoid conflicts of interest.

They cannot benefit from their position as executor without the informed consent of the beneficiaries.

In summary: While an executor can potentially be paid for their work, it’s not automatic. They need either a clear provision in the will or the informed consent of all beneficiaries, or they must apply to the court for an order.

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Disclaimer: This post contains information of a general nature only and is not intended to be used as advice in relation to a specific matter. Although every care has been taken in preparing the document, it may not be accurate or complete, particularly in the context of specific circumstances. MJM Lawyers disclaims responsibility for any errors or omissions.