A New York executor commission is set by statute at a tiered percentage of the estate’s probate assets: 5% on the first $100,000, 4% on the next $200,000, 3% on the next $700,000, 2.5% on the next $4,000,000, and 2% on everything above $5,000,000. That formula, found in Surrogate’s Court Procedure Act (SCPA) 2307, produces about $34,000 on a $1 million probate estate and roughly $59,000 on a $2 million one. The actual check can be quite different from what the formula suggests, because only certain assets count, the will can override the statute, and a court can reduce the commission for misconduct.
How the Tiers Work
The brackets work like income tax brackets. Each dollar of estate value is paid at the rate for the bracket it falls into, not the rate of the top bracket the estate reaches.
- First $100,000: 5%
- Next $200,000: 4%
- Next $700,000: 3%
- Next $4,000,000: 2.5%
- Above $5,000,000: 2%
Run through a $1,000,000 estate and the math is $5,000 + $8,000 + $21,000, for a total of $34,000. A $6,000,000 estate reaches $129,000.
Property the executor receives and then distributes in kind is treated as its cash equivalent. If a brokerage account worth $500,000 is transferred to a beneficiary without ever being liquidated, that $500,000 still counts toward the commission base. The Surrogate’s Court determines the valuation method.
An executor who manages rental real estate also earns an extra 5% of gross rents on top of the standard commission. Only one rent commission applies no matter how many executors serve.
Which Assets Count
The commission is calculated on the probate estate, meaning assets the decedent owned individually at death: stocks, bank accounts, brokerage holdings, business interests, individually owned real estate, vehicles, jewelry, and personal property.
Several categories are excluded:
- Specific bequests. A will that leaves a named item to a named person (“my diamond ring to my daughter”) generates no commission on that item. General bequests like “$50,000 to my nephew” do count, because they are paid from the estate’s general assets.
- Non-probate assets. Anything passing outside the will is out: joint bank accounts, jointly held real property, payable-on-death and in-trust-for accounts, life insurance with a named beneficiary, IRAs, and pension plans.
- Unsold real estate. If the executor distributes real property directly to a beneficiary rather than selling it, its value does not count. If the executor sells it, the sale proceeds do.
This is where most estimates go wrong. A decedent with a $3 million net worth might have only $800,000 in probate assets if most of the wealth sits in joint accounts, retirement plans, and life insurance. The executor’s commission on that estate would be about $26,000, not the roughly $79,000 the full net worth would generate.
What Happens With Multiple Executors
Under SCPA 2313, when two executors serve, each is entitled to a full commission. That effectively doubles the estate’s cost compared to a single executor. For decedents who died after August 31, 1993, if three or more executors serve, the estate still owes only two full commissions unless the will specifically authorizes more in a signed writing. Those two commissions are divided among the fiduciaries based on the services each performed, unless they agree in writing on a different split, and no one executor can end up with more than a single full commission.
Naming a third executor doesn’t add money to the pot. It just adds a person expecting to be paid from it.
When the Will Sets Different Compensation
A will can set a flat fee, a different percentage, or no compensation at all. When it does, the executor is stuck with that number unless they formally renounce it within four months of receiving letters testamentary from the Surrogate’s Court. A timely renunciation restores the standard statutory commissions. Miss the deadline and the will’s terms lock in.
The trap is a decades-old will that named a fixed dollar figure sensible at the time. A $5,000 fee written into a will drafted when the estate was worth $200,000 is still $5,000 when the estate is worth $2 million, unless the executor renounces in time.
Attorney-Drafters Who Serve as Executor
SCPA 2307-a imposes disclosure requirements when the attorney who drafted the will also serves as executor. Before the will is signed, the attorney must inform the testator that almost anyone can serve as executor, that any executor is entitled to statutory commissions, and that the attorney can also charge separate legal fees for legal work done during administration.
The testator has to acknowledge these disclosures in a separate writing, signed in front of at least one witness other than the attorney-executor. The document can be attached to the will but is not part of it, and it has to be filed with the Surrogate’s Court when the attorney applies for letters.
If the acknowledgment is missing, the attorney-executor’s commission is automatically cut in half. There is no cure.
Waiving the Commission
Executors can waive their commission, and executors who are also beneficiaries often do. Commissions are taxable income; an inheritance generally isn’t. On a $1 million estate where the executor is the sole beneficiary, taking the $34,000 commission means paying income tax on it rather than receiving the full estate as a tax-free inheritance.
A waiver also eliminates the estate’s deduction for that commission, so the right answer depends on the executor’s tax bracket, whether the estate owes federal estate tax, and the size of the inheritance. An accountant or estate attorney can model both scenarios quickly.
For executors who do take the commission, the IRS treats it as taxable income on the personal return. A nonprofessional executor reports it as other income; a professional fiduciary reports it as self-employment income. Self-employment tax generally does not apply to a family member serving once.
Getting Paid Before the Estate Closes
Estate administration often runs longer than a year. SCPA 2311 lets an executor petition the Surrogate’s Court for an advance commission at any point during administration, without notice to beneficiaries and without a hearing unless the court decides otherwise.
The executor has to show one of three things: a meaningful tax benefit to the executor or the estate, hardship without the payment, or written consent from everyone affected. The advance is generally capped at half the full statutory amount, and the court can go higher only with consent from all affected parties. Unless the executor has already posted a bond, is a corporate fiduciary, or the will waives the bonding requirement, the court will require a bond securing return of the advance if it is later disallowed.
When a Court Can Reduce or Deny Commissions
Statutory commissions are mandatory when the executor has done the job. The Surrogate’s Court has discretion to reduce or deny them only when conduct crosses from ordinary mistakes into misconduct: self-dealing, indifference to fiduciary duties, or refusal to obey court orders.
In Matter of Donner, the court sustained objections to the executors’ accounting, reduced their commissions, and surcharged them for multiple acts of negligence in collecting estate assets. In Matter of Kopec, the court said the threshold for denial is behavior rising to “dereliction, complete indifference or other comparable acts of misfeasance.” Good-faith errors, even unauthorized payments, may not be enough on their own to forfeit a commission.
Beneficiaries who suspect mismanagement can file objections during the accounting proceeding, and the court will examine records, valuations, and expense categorizations. Contemporaneous records defend a commission far better than a paper trail reconstructed later.