Executor's commission

In an earlier article, I highlighted the role of an executor, and it is clear that the responsibility is great and the task can be onerous. This, therefore, begs the questions, "Who pays the executor?" and "How much is the executor to be paid?"

The short answers are that the executor is to be paid a commission by the deceased's estate and the amount which he is to be paid is based on the stipulation in the will or the provisions of The Trustees, Attorneys and Executors (Accounts and General) Act. The executor's commission represents remuneration for the time and responsibility of the executor in the general administration of the estate.

Section 5 of the act sets out the options in respect of the commission:

If the testator (person who died leaving behind a will) does not state what sum shall be payable to the executor, the executor will be entitled to receive a commission equivalent to that which would be payable under the Administrator General's Act. Under that act, an executor is entitled to charge six per cent commission on all monies 'passing through' his hands. If there is more than one executor, the commission will have to be divided equally between such of them as are ready and willing to act. However, it should be noted that an executor forfeits his commission if he is a beneficiary under the estate.

If the testator by his will directs the sum which is to be paid as remuneration to his executor, the executor shall only be entitled to such remuneration. However, the executor could file a document at court, at the same time as he is making an application for probate, to renounce that specific remuneration.

If the Trustees, Attorneys and Executors (Accounts and General) act applies, and an executor receives commission in excess of the sum which is authorised under that act, he shall be liable to repay the sum wrongfully taken from the estate with interest and shall forfeit the whole or a part of the commission as the Court thinks fit. Action to recover this sum must be brought by at least one beneficiary of the estate; and only one action can be brought in respect of any one default.

When one refers to all sums which pass through the executor's hands, the sums include all payments made by him in respect of debts, liabilities, cost of management, and other similar charges, and on all payments in respect of dividends, interests, rents, or other produce, or receipts of any estate or trust, and also on all property, real and personal, conveyed, assigned, or distributed by him, including the final transfer of the corpus of any trust fund, or of any part thereof.

Given the fact that the remuneration is based on commission, the executor's commission could be quite substantial if an estate is very large or valuable, and the converse is also true.

NB: It should be noted that Administrators of estates are also entitled to receive commission.Sherry-Ann McGregor is a partner and mediator with the firm Nunes, Scholefield, DeLeon & Co. Send feedback and questions to lawsofeve@yahoo.com or Lifestyle@gleanerjm.com.