When a Brooklyn family loses a parent, the eldest sibling often steps up to act as executor out of a sense of obligation. They anticipate a few straightforward tasks: filing a document at the courthouse, closing a bank account, and distributing the remaining funds. Nine months later, they are still answering demands from creditors, tracking down missing digital assets, securing vacant real estate, and waiting on hold with the Surrogate’s Court. The sheer volume of administrative work catches them entirely off guard. Eventually, initial grief gives way to exhaustion, followed by a very practical question—do I get paid for this?
The short answer is yes. In our practice, we never view the executor’s role as an honorary title. It is a demanding job. It requires a strict fiduciary duty to the estate, personal liability for accounting mistakes, and hundreds of hours of unglamorous labor. The state recognizes this heavy burden.
How New York Calculates Executor Commissions
Executors do not simply pick a number they feel is fair, nor do they bill by the hour like an attorney. Under the Surrogate’s Court Procedure Act (SCPA) § 2307, executors are entitled to a statutory commission based on the value of the probate estate they manage. The fee is structured mathematically as a sliding scale:
- 5% on the first $100,000
- 4% on the next $200,000
- 3% on the next $700,000
- 2.5% on the next $4,000,000
- 2% on any amount above $5,000,000
If a parent leaves behind a probate estate valued at exactly $1,000,000, the executor is legally entitled to a commission of $34,000. The court views this compensation as a necessary administrative expense of the estate. This means the executor is paid from the estate funds before the remaining assets are distributed to the heirs.
The Nuance of Real Estate and Non-Probate Assets
Not every dollar a person leaves behind is subject to an executor’s commission. This is where families and even novice practitioners often miscalculate the expected fees. Commissions are strictly based on the probate estate—the specific assets that actually pass through the executor’s hands and require court authority to transfer.
If a father leaves a $2 million life insurance policy with a named beneficiary, that money passes entirely outside of probate. The executor does not manage it, has no legal authority over it, and therefore does not earn a percentage of it. The same rule applies to joint bank accounts, retirement accounts with designated beneficiaries, or real property held with rights of survivorship.
Real estate introduces its own specific rules. Under New York law, an executor does not automatically earn a commission on the value of unsold real property. If a will simply leaves a house to the children, and the deed transfers to them by operation of law, the executor takes no fee on that house. However, if the will specifically directs the executor to sell the property, or if the house must be sold to satisfy the deceased’s debts, the proceeds of that sale enter the probate estate and become subject to the statutory commission.
Furthermore, if an individual executed a deliberate estate plan using a revocable living trust, the assets held within that trust bypass the Surrogate’s Court entirely. The successor trustee manages those funds, not the executor.
The Tax Dilemma: To Take the Fee or Waive It?
Even when an executor is legally entitled to a commission, they do not always take it. When the executor is also the sole or primary beneficiary of the estate, accepting the commission might be a poor financial decision.
Under state and federal law, an inheritance is generally tax-free to the recipient. An executor’s commission, however, is considered earned income. It must be reported on the executor’s personal income tax return. If a daughter is the sole beneficiary of her mother’s estate, taking a $34,000 commission simply moves money from her tax-free inheritance column into her taxable income column. In cases like this, we typically consider advising the executor to formally waive their right to compensation, allowing the full amount to pass to them as a tax-free inheritance.
Conversely, if an estate is to be divided equally among four siblings, but only one sibling is doing the grueling work of acting as executor, we typically consider it prudent for that individual to take the commission. Otherwise, they are effectively working hundreds of hours for free to enrich their siblings.
The Problem with Naming Multiple Co-Executors
Parents frequently name all three of their children as co-executors to avoid hurting anyone’s feelings. We strongly advise against this approach. Beyond the logistical nightmare of requiring three signatures on every real estate contract, tax return, or bank transfer, it complicates the issue of compensation.
Conflict.
Under SCPA § 2313, if the probate estate is valued at $100,000 or more, multiple executors can claim full statutory commissions—meaning the estate pays double or even triple the administrative fees, reducing the inheritance left for the actual beneficiaries. When the law caps the total compensation and forces co-executors to apportion the fee among themselves according to the services rendered, arguments over who did more work inevitably follow. This often fractures family relationships.
A prudent estate plan avoids this entirely. We prefer to name a single, highly capable primary executor, followed by a sequence of individual alternates in case the first choice cannot serve.
Can a Will Change the Executor’s Pay?
While the SCPA provides the default statutory rates, a testator has the right to dictate different terms within their will. A person can state that their executor shall receive a specific flat fee, or even stipulate that the executor must serve without compensation.
However, you cannot force someone to take on this liability. If you mandate that your executor serves for free, and that individual is not receiving a substantial inheritance, they will likely formally renounce the appointment. When a named executor walks away, the court must appoint an administrator, entirely defeating the purpose of drafting a deliberate will.
Being an executor is an arduous task of legacy stewardship, and the compensation rules reflect the weight of that responsibility. You owe it to your chosen custodian to set them up for success, not endless litigation. If you are unsure whether your current executor designations make financial and practical sense, schedule a 30-minute review of your existing will to evaluate your fiduciary appointments.
