In New York State, my brother and I are co-executors of my mother's estate (and there are other beneficiaries). The probate estate is worth over $500k gross. My understanding is that we can each receive a full commission since there are only two of us and the estate exceeds $300k (or $400k, depending on where I look). However, in addition, my brother is an attorney, and he wants to charge attorney's fees. Does he get either attorney's fees OR the commission, or can he claim both? If he charges attorney fees, can he only charge for legal-type things he had to do, or can he charge for everything (from contacting the bank for statements to going to the closing of the house, to paying off debts, and making reimbursement payouts, etc.?). Does he have to list what he is charging attorney's fees for, specifically?He is claiming he gets a commission AND attorney's fees, but my attorneys said he gets either/or. I cannot find anything clear on this, although this law states he can charge for "legal services" N.Y. SCP. LAW § 2307-a : NY Code - Section 2307-A: Commissions of attorney-executor 1(d) if such attorney or an affiliated attorney renders legal services in connection with the executor's official duties, such attorney or a then affiliated attorney is entitled to receive just and reasonable compensation for such legal services, in addition to the executor's statutory commissions.
Thank you for using Just Answer. If you require clarification, please feel free to post a follow up question.Your brother is free to charge for his legal services but the court will need to approve it and they may balk at paying him both executor fees on top of legal fees. However, it is not prohibited.As an aside, many executors who are also beneficiaries will waive the executor commission because it will be taxed to the recipient as income. That does not happen with the amount received as an heir or legatee under the will. Therefore, if the money that would have gone to the executor is waived and distributed as residuary it may be advantageous from a tax standpoint.
Dear Lawguy,Thank you for your answer but it is not clear to me. My question concerns have a very important detail: what exactly can he charge for, on top of the executor's commission? "Legal services" seems vague to me. In your answer, you say the "court will need to approve it." How so? In what procedure, at what time?As I posted in my question, I had already found the law stating he could charge on top of statutory commission. So the details are of the most importance here in your answer.I did not need the information regarding waiving executor fees (as they are taxed). We already know this and since there are a total of 5 beneficiaries, it would not be advantageous to the co-executors to waive their fees from a tax vs. non-taxed perspective.Thank you.
The probate code requires fees be reasonable. Therefore, your brother would need to show the number of hours he provided legal services and what his hourly rate is. The court would determine if the request is reasonable.
I see you expected more – is there something you are unclear on, or that I can be of further help with?
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