Legal Question in Wills and Trusts in New York

Re: Executor Fees

Executors get paid commissions which are calculated as a percentage of the value of the "probate estate," less any specific bequests, legacies or devises (i.e., items of real or personal property left by the testator to a specific individual). The probate estate is defined as all property held in the decedent's name. It does not include jointly held real property (such as a house which passes to a spouse), or any bank account or other property held jointly with another individual such as a spouse or child. Such amounts do not pass under the Will. Bank accounts which are held in trust for another individual, pension plans, life insurance, IRAs and any other accounts or policies which are paid directly to a beneficiary and not to the estate itself also do not pass under the Will.

Generally, everything that the decedent owned individually at the time of his or her death is included in the probate estate. This includes any business interests or real property owned by the decedent individually, any stocks, bonds, bank accounts or brokerage accounts held individually, automobiles, tangible personal property, works of art, furniture, jewelry and collectibles.

Depending on the size of the estate, if there is more than one Executor, the Executors may be required to share commissions. If the value of the probate estate (less any specific bequests of personal property or cash amounts to named individuals or institutions) is more than $300,000, each Executor (up to a total of two) is entitled to be paid a full commission. If more than two Executors are named, they must split two full commissions, unless the decedent has specifically provided otherwise in writing.

While a testator can specify in his or her Will that the named Executors (or any successors) must waive commissions in order to be eligible to serve, this is only recommended if the person named is a beneficiary of the estate or a very close personal friend, since being an Executor is time consuming. A bank or trust company will not serve as an Executor of an estate unless it is entitled to commissions, although an attorney may agree to serve without commissions (or for reduced commissions) if his or her firm will receive legal fees for work done during the estate administration. The commission rate in New York for each Executor is 5% on the first $100,000 in the estate, 4% on the next $200,000, 3% on the next $700,000, 2-1/2 % on the next $4,000,000 and 2% on any amount above $5,000,000. Banks and Trust Companies may charge more for their services as Executors and Trustees, and particularly as money managers.

The will would control the disposition of the houses and the side writing would be of no force and effect, except as evidence of your father's intentions if the provisions of the will are not clear. To answer your question more precisely would depend upon the exact language of the will.

Re: Executor Fees

I agree with Adam as to the fees, which are set by Statute. The Surrogate can provide the calculation formula or it may be on his website. The handwritten note may be considered a contract and enforceable as such, although, by itself, it cannot change the terms of the Will, unless it is referenced in the Will as being an attachment. If there is a question, this can be posed to the Surrogate who can rule on its effect. This would require an Application For Instructions be filed and a hearing, if there is a dispute on its effectiveness and questions of whether or not it is binding on those who signed it. I have not seen the Will or the signed document, so I make no comments other than what is written above. This is a response to an Internet question and is not intended to constitute legal advice or create an attorney-client relationship.