A son in Brooklyn recently called my office. His mother had passed, and her will named him as the executor of her estate. He was still grieving, but he was also overwhelmed. He faced months of work—liquidating assets, paying creditors, filing taxes, and dealing with his siblings. His first question wasn’t about the will itself, but about the job he’d been given: “Am I supposed to do all of this for free?”
It’s a fair question. Serving as an executor is a significant responsibility—a job with serious legal and financial duties. New York law recognizes this and provides a statutory framework for compensation. This isn’t a negotiation between family members or a figure you invent. It’s a formula.
The Statutory Commission Formula
Executor commissions in New York are not arbitrary. They are calculated according to a specific schedule in Surrogate’s Court Procedure Act (SCPA) § 2307. The law sets a tiered commission based on the value of the “commissionable estate”—the assets 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 all amounts above $5,000,000
On a $500,000 estate, the executor’s commission would be calculated as: (5% of $100k) + (4% of $200k) + (3% of the remaining $200k). This comes out to $5,000 + $8,000 + $6,000, for a total of $19,000. This fee is paid from the estate’s assets before any final distributions are made to beneficiaries.
The commissionable estate includes assets that pass through probate under the will—bank accounts, investment portfolios, and real estate. It typically does not include assets that pass outside of the will, like life insurance policies with a named beneficiary or accounts held jointly with rights of survivorship.
When Multiple Executors are Involved
What happens when a will names more than one executor? If the gross value of the estate is $100,000 or more, the rules change. For an estate valued between $100,000 and $299,999.99, two executors can each receive a full commission. If the estate is worth $300,000 or more, up to three executors can each be paid a full commission.
If there are more than three co-executors, they must split the equivalent of three full commissions among themselves. This structure is intended to compensate fiduciaries fairly without unduly draining the estate’s assets. When I draft a will for a client, we deliberately discuss the number of executors and the impact this will have on the estate’s administration costs.
Extraordinary Services and Waiving the Fee
The statutory formula covers the standard duties of an executor—collecting assets, paying debts and estate taxes, and distributing property. But sometimes, the job is much bigger. If an executor has to manage the deceased’s business, oversee complex litigation on behalf of the estate, or handle a contested accounting, the Surrogate’s Court may approve additional compensation for these extraordinary services.
On the other hand, many family-member executors choose to waive their commission entirely. This is a personal decision, often made to maximize the inheritance for all beneficiaries. There are also tax implications. An executor’s commission is taxable income to the person who receives it. An inheritance, by contrast, is generally not considered income for the beneficiary. For an executor who is also the sole beneficiary, taking a commission means turning a tax-free inheritance into taxable income. Waiving the fee is often the most prudent financial choice.
Stewardship. Ultimately, serving as an executor is an act of stewardship. Whether you accept a commission or waive it, the role carries a profound fiduciary duty. Every decision must be made in the best interest of the estate and its beneficiaries. A misstep can create disputes among family members and even lead to personal liability.
Before you formally accept an appointment as executor, you must understand the full scope of your duties and the potential liabilities. We routinely provide a confidential review for nominated executors to help them assess the estate and make an informed decision about taking on the role.
