Being appointed as an executor is a significant responsibility. An executor may be required to obtain probate, identify and collect assets, pay debts and liabilities, deal with tax matters, manage or sell property, communicate with beneficiaries and ultimately distribute the estate in accordance with the Will.
With such a wide range of potential obligations and undertakings, can executors be paid for their time and effort?
Generally, an executor is not automatically entitled to charge a fee simply because they have been appointed under the Will, unless the Will otherwise specifies. That being said however, short of the Will making provision for executor’s commission, the Supreme Court of Western Australia has a discretion to award executor’s commission where certain statutory requirements are satisfied.
What is executor’s commission?
In short, executor’s commission is remuneration awarded by the Court to an executor for the services involved in administering a deceased estate.
In accordance with the provisions of the Trustees Act 1962 (WA), the Court is permitted to allow a trustee a commission or percentage for services where the Court considers the amount to be “just and reasonable”. The aggregate commission however cannot exceed 5% of the gross value of the trust property.
This does not mean that an executor is entitled to the full 5%. The 5% figure is a statutory ceiling, not a standard rate. The amount awarded depends upon the circumstances of each particular estate.
What will the Court consider?
The Court will generally consider the nature and complexity of the administration and the work actually undertaken by the executor. Relevant considerations can include:
- the size, value and nature of the estate;
- the time and effort required;
- the financial or commercial expertise of the executor;
- the difficulties encountered during administration;
- the extent to which the executor contributed to the efficient administration of the estate; and
- whether the executor properly discharged their fiduciary duties.
The Court's discretion is important. Executor’s commission is not simply an hourly fee for work performed, instead it is a discretionary allowance recognising the services and responsibilities undertaken by the executor.
Ackerman v Ackerman [2025] WASC 541
The 2025 decision by Master Russell in Ackerman v Ackerman [2025] WASC 541, demonstrates why executor’s commission can be particularly relevant in a complex estate.
The estate in that case was valued at approximately $4.82 million and involved property and trusts in both Western Australia and the United States. The applicant executor had devoted significant personal time to administering the estate and, importantly, her financial knowledge and experience made a substantial contribution to its efficient administration.
Master Russell noted that:
“[36] Remuneration may not be appropriate in every case. It will depend on the circumstances, the nature of the estate, its administration, the work required to be undertaken and the time the personal representative has had to devote to the administration of the estate.”
Ultimately, the executor was awarded commission of 4%, amounting to approximately $192,625.
The decision is significant because it demonstrates that a substantial commission can be appropriate where the circumstances justify it. It does not, however, establish that executors of large estates are routinely entitled to a higher percentage of up to 5%.
Commission is not automatic
An executor should also be aware that poor administration can affect the Court’s willingness to award commission.
In Pacella v Sherborne [No 2] [2010] WASC 186, the Court considered an executor’s application for commission. The Court emphasised that the discretion to award commission must be exercised having regard to the circumstances of the administration. In that case, the executor’s conduct, including delays and shortcomings in the administration, weighed heavily against awarding additional commission.
Significantly, on the point of “executor’s conduct”, in Ackerman v Ackerman, Master Russell noted in favour of the applicant that:
“[40] . . . the circumstances of this case and the additional time and services Ms Ackermann has provided are above and beyond those that would normally be expected in the administration of an estate due to several complex circumstances . . . ”
“[45] . . . Ms Ackermann has also incurred a significant amount of her own time in administering the Estate which, given her financial knowledge and experience, will have made a significant contribution to the efficient administration of the Estate.”
This highlights an important principle, in that, an executor seeking commission should be able to demonstrate not only that they performed substantial work, but that the estate was administered appropriately.
What should an executor do?
If you are acting as an executor and believe you have spent substantial time and effort administering an estate, it is worth obtaining legal advice before distributing the estate.
A claim for executor’s commission should be considered carefully, particularly where the estate is complex, administration has been unusually demanding, or the executor has contributed significant expertise and personal time.
Fort Knox Legal regularly assists executors with probate and deceased estate administration, including advice concerning the rights and obligations of executors and the administration and distribution of estate assets.
If you are an executor, beneficiary or family member concerned about whether executor’s commission is appropriate, professional advice can help ensure that the interests of both the executor and the beneficiaries are properly considered.