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Irwin Law
Irwin Law, Attorney
Category: Estate Law
Satisfied Customers: 7348
Experience:  30+ yrs. handling probate estate, wills, trust, inheritance & real estate related matters
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Fees paid from Gross sale of property

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After four years of will probate, I was finally made executrix for a will signed 4 years before death and the will was found to be totally complete and legally binding - witnessess deposed etc This was way too long of an ordeal for a legally sound instrument. As an executor, I spent many hours , days , months and now years , with over $18, 000 UPKEEPING the Property ( a residence ) until it finally sold last year. The title /deed is in my name and shared with siblings . My role as executrix, was first to upkeep the residence, which needed to be cleaned out, it was then vandalized and had water damaged,utility bills, taxes and insurances among many maintenance items, were I paid on time etc. I was doing the duties well before the surrogate court legally recognized me thats for sure. My concern is my own attorney may thinks the executor fees for NYS will not apply to me since the gross assets dont apply from the sale of the house, just the estate, which is 100% mine ( a 50% portion ) of the Gross sale. Is that true? What if I was a perfect stranger , not an heir but an administrator, took care of the house, which now benefits three other siblings from its sale without their contribution to maintain whatsoever over 4 years? I need an answer simply, should I be paid commission fees from the gross sale of NY property ( some 250K) , which I think is correct or just the split share of the distribution of the property. I need two items to be considered before distribution of assets, my outlay of 18K just for 4 years of upkeep and also my NYS executor fees , based on the sale of the house. Do you agree? To keep it simple, the house sold for 250K. there were back taxes, liens and real estate commissions , which reduced the gross to 100K. I am stating I should also be paid not only the 18K I used to upkeep the house  but also the NYS commission fees, based off the gross sale.

The property still needed admin to maintain it and all its utilities all these years. I believe I should have been given payment as an other debt incurred such as the realtor , and yet I was ignored at the sale table when checks were passing to all but me. I have mentioned this many a time to my attorney. Due to the sensitovity of the will, he has held all the assets and gave me one check last July, house sold Feb 2012 . to pay pay off the landscaper his final bill. Meanwhile, I paid the landscaper out of pocket for 4 years and have not been reimbursed. I have instructed the estate attorney to begin distribution and he continues to lag. I need some concrete cases to site him why he should pay me 100% my out of pocket asap , and also to fight for my NYS executor fee. ( some 6K) Thank you for your anticipated assistance. 

Hello. Please clarify and simplify what your question is about. There are far too many facts and opinions presented which are very confusing. Thanks. We'll be back on line tomorrow and try to assist.
Customer: replied 4 years ago.

There are two questions:

1. As executor, am I entitled to NY state executor fees based off the entire gross sale of a house, sold at 250K or only from the deceased persons estate. which is 50% of the sale? All other parties involved are tenants in common and alive.


2. As executor first, not as a heir, I maintained the house for 4 years while no one was living in it. Should I have been paid at the closing of the sale as every other lien and debt ( ie realtor paid 6% and back taxes were paid.)


Because of the final distribution of assets, there are disbutes from where payment should be taken , from the gross sale proceeds, or just the estate proceeds.

I say the gross sale of the house. Please let me know if you need more clarity .

Thanks for the clarification. One more please. How was title to the home held on the date of death of the person for whose estate you are the executrix, i.e. what percentage of the home was held by the estate and what percentages were held by you and your siblings, or whoever?

Customer: replied 4 years ago.

On the date of death, the home was still legally 50% Mother and the other 50% under my father. He later agreed to allow his 50% to be shared equally by the four children. This was done legally transferred until the actual closing of the house sale, some 3 years after her death. Again, I spent 4 years paying off monthly bills past owed and attending to the overall maintenance of the home , which belonged to 4 people on the DATE OF SALE. I was 5/8s owner (62.5%), with the other 3 siblings owning 1/8 each. \None contributed after her death to anything, and left me holding the "entire" residence to sell , clean and maintain. Thank you

I need to add that Mom's will provided me 100% of her estate. Because no equitable distribution was done for years after divorce, the settlement was for her to have her home and his half to his 4 children. Unfortunately the quik claim deed was not done in 2002 as mandated by supreme court, so upon her death, I had to find him and request he "do the right thing and provide the other 50% . Eventually he did , but it took 4 years after her death to get all these parties to agree to transfer the deed , first to the joint tenants, mom and her children ( 50/50) and then sell the property all on the same day . You can imagine the attorney fees to finish up old divorce business besides the new business of a will allowing for only one child to inherit her share. Thus the contestment of the will in probate. It's along story , I could write a book.

I just want my rights as 1. the executor protected and 2. as a paying contributor to the overall home protected.

I could send you the illustration on what the attorneys are debating over if that helps via email.


1. As executor, am I entitled to NY state executor fees based off the entire gross sale of a house, sold at 250K or only from the deceased persons estate. which is 50% of the sale? All other parties involved are tenants in common and alive.

Your mother & father each owned 50-50. Only 50% went into your mother's estate which you received 100% of. The balance went to your father who then deeded his interest to you and his three other children equally making you the a 62.5% owner and the other three 12.5% each or 37.5 %. Doing the math, clearly only 50% or 1/2 the value of the home would have been an asset of her estate, and executor fees would be base on that. Now, you could argue that you provided extraordinary services because you can't just oversee and maintain half a house. I'm still not clear on the expense question, but half of those should have been paid from the assets of the estate, not from the sale proceeds. Those were not liens against the property or expenses of the sale. I believe this also answers your 2nd question. I would add that you should also investigate the income tax aspects of receiving an Executor's fee vs receiving the estate money as an inheritance. You might find that the commission amount issue is not as significant as the tax issue.

I hope this information is helpful and that you will enter a positive rating. I thank you for submitting your question to Pearl-Just Answer. We appreciate your business. If you need clarification or additional information, please send me a Reply and I will be happy to explain further. Please consult a local attorney to verify the accuracy of this information according to your state's laws.

Customer: replied 4 years ago.

You sited ....Doing the math, clearly only 50% or 1/2 the value of the home would have been an asset of her estate, and executor fees would be base on that.

So, Basically, you agree fees do apply. Would these come off the gross sale assets before distribution of proceeds held in the escrow account or only from the estate proceeds?. This makes a difference in how the assets are allocated. Thank you.


The estate's fees are paid from the gross estate assets. They are neither attributed to nor paid from the sale proceeds that are derived from specific assets. The net proceeds from the sale, without payment of executor fees should have been paid out 50-50 to the estate and the four heirs.

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