When a parent passes away in Manhattan, one of their children is often named as the executor in the will. That son or daughter is still grieving, yet they are immediately handed a second, full-time job. They must locate the will, petition the Surrogate’s Court, gather assets, pay creditors, file tax returns, and manage distributions to beneficiaries—all while fielding calls from anxious siblings. Amid this work, the question of payment inevitably comes up. Is it selfish to ask about compensation? Absolutely not. It is a recognition of the immense responsibility and labor involved in stewarding a loved one’s legacy.
Serving as an executor is a fiduciary duty of the highest order. It is not a simple favor. In my practice, I have seen this role take hundreds of hours and last for more than a year. New York law recognizes this and has a formal structure for compensating executors for their time, effort, and legal risk.
How New York Law Calculates Executor Commissions
Many people believe an executor’s pay is an arbitrary amount decided by the family. The opposite is true. Unless a will specifies otherwise, an executor’s compensation is set by statute. The relevant law is Section 2307 of the Surrogate’s Court Procedure Act (SCPA), which outlines a commission based on a percentage of the “commissionable estate.”
This commissionable estate includes the value of all property and assets the executor is responsible for receiving and paying out. It generally does not include assets that pass outside of probate, such as property held in a trust or accounts with designated beneficiaries. The statutory rates are on 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 over $5,000,000
On a $1 million estate, for example, the executor’s commission is calculated in brackets, resulting in a total fee of $34,000. This is not a figure pulled from thin air—it is the direct application of SCPA §2307. This formula provides a clear, predictable framework that removes ambiguity and helps prevent disputes among beneficiaries who might otherwise question the payment.
What if the Will Specifies a Different Fee?
A person writing a will—the testator—has the right to set their own terms for executor compensation. They might state a specific flat fee (“my daughter shall receive $10,000 for her service”) or even declare that the executor should serve without compensation, which is common when the executor is also the primary beneficiary.
However, no one can be forced to work for free. If a will stipulates a lower fee than the statutory commission, or no fee at all, the nominated executor has a choice. Under New York law, they can file a written renunciation of the will’s compensation provision before they formally begin their duties. By doing so, they reject the will’s terms and opt to receive the standard statutory commission instead. This is a critical protection for executors who may not realize the full scope of the work until after the testator’s death.
This decision requires careful consideration. It’s a formal legal step that must be taken at the beginning of the probate process, and it can sometimes create friction with beneficiaries. Prudent planning during the will-drafting stage can prevent this conflict entirely.
Multiple Executors and Extraordinary Services
When a will appoints co-executors, the law provides a clear rule. If the gross value of the estate is $300,000 or more, up to two executors are each entitled to a full statutory commission. If there are more than two, they must share the equivalent of two full commissions. For estates valued under $300,000, all co-executors must share a single commission.
Furthermore, the Surrogate’s Court can approve additional compensation for work that goes beyond the normal scope of an executor’s duties. This could involve managing ongoing business operations, overseeing complex litigation on behalf of the estate, or handling the sale of a significant commercial property. The executor must petition the court and provide detailed evidence of the “extraordinary” work performed to justify a fee beyond the statutory rate. This is not granted lightly—the burden of proof is on the executor.
Ultimately, the role of an executor is one of profound trust and responsibility. The compensation is not a windfall; it is payment for a demanding job performed during a difficult time. A well-drafted will addresses this issue with intention, bringing clarity to the process and preserving family relationships.
If you are drafting your will and considering whom to appoint as your executor, the compensation clause is a critical component of that decision. We structure these fiduciary provisions deliberately to prevent future conflict. I invite you to schedule a consultation to review your intentions and ensure they are clearly reflected in your legal documents.
