A woman from Brooklyn calls my office. Her aunt, who lived alone in a rent-controlled apartment for fifty years, named her as the executor of her will. She is honored by the trust placed in her, but she’s also overwhelmed. She’s spending her weekends sorting through decades of paperwork, corresponding with banks, and trying to locate distant relatives. She has a demanding job and a family of her own. Her question is a practical one: “Am I supposed to do all of this for free?”
It’s a question we hear often. Serving as an executor is not a simple task—it’s a demanding fiduciary role that carries significant legal responsibility. The person you name as your executor is tasked with the stewardship of your legacy. They must marshal your assets, pay your final debts and taxes, and distribute what remains according to your wishes. New York law recognizes the gravity of this role. An executor is not expected to work for free.
The Statutory Commission Formula
Many people are surprised to learn that executor compensation isn’t arbitrary. It’s not a figure you negotiate with the beneficiaries. Instead, New York law provides a specific, tiered formula for calculating the commission an executor is entitled to receive. This formula is laid out in the Surrogate’s Court Procedure Act—specifically, SCPA §2307.
The statute sets commissions based on the value of the “commissionable estate,” which includes the assets that the executor is responsible for receiving and paying out. The rates are as follows:
- 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
For example, on a commissionable estate of $500,000, the executor’s fee would be calculated as: (5% of $100,000) + (4% of $200,000) + (3% of the final $200,000). This totals $5,000 + $8,000 + $6,000, for a total commission of $19,000. This is the law’s direct acknowledgment of the work required to settle an estate of that size.
What Is a “Commissionable Estate”?
The calculation isn’t based on the total value of everything the deceased owned. It applies only to the assets that actually pass through the executor’s hands during the probate process. This is a critical distinction.
For instance, assets that pass by operation of law—like a joint bank account with a right of survivorship or a life insurance policy with a named beneficiary—are not part of the probate estate and therefore not included in the commission calculation. Similarly, real estate that is specifically bequeathed to a beneficiary is not commissionable unless the executor must sell the property to pay estate debts.
The executor’s primary duties are collecting assets, satisfying liabilities, and distributing the net estate. The commission is payment for performing that work. This commission is also taxable income to the executor and must be reported as such.
When the Rules Can Change
While SCPA §2307 provides the default rule, it isn’t the final word in every situation. A person creating a will—the testator—has the power to alter this arrangement.
A will can specify a different compensation structure entirely. A testator might state that the executor will receive a specific lump sum, like $10,000, regardless of the estate’s size. Or, the will could state that the executor must serve without compensation. This is most common when the named executor is also the sole beneficiary, as it makes little sense to pay a commission to oneself and create a taxable event.
An executor also has the right to waive the commission. A child serving as executor for a parent’s estate might choose to do this. They may see the work as a final act of love and service, or they may prefer to receive their share as a tax-free inheritance rather than as taxable income. This must be a deliberate, documented choice.
Finally, what about co-executors? If an estate’s gross value is $100,000 or more, each co-executor (up to three) is entitled to a full statutory commission. If there are more than three, they must share the equivalent of three full commissions between them, unless the will provides otherwise. Prudent planning requires thinking through these contingencies.
Serving as an executor is an act of trust and diligence. The law provides a framework for fair compensation, but that framework exists within the larger context of a family’s wishes and an executor’s fiduciary duty. It is a role that should be accepted with a clear understanding of the responsibilities—and rights—it entails.
If you are drafting your will and considering whom to appoint, or if you have been named an executor and need clarity on your role, the first step is to understand the specific legal duties involved. To discuss the responsibilities of an executor in the context of a particular estate plan, I invite you to schedule a consultation with our firm.
