My grandmothers estate only had 1 asset unresolved, cash. My mothers brother wouldnt sign the final papers because he thought my mother shouldn't get an executor fee. He has petitioned to be the executor due to my moms death. If he becomes exec, does he get fees based on the whole estate or the remaining assets? Can I petition to become executor? I am the exec of my mothers estate.
Estate Planning Attorney
In New Jersey, the fee of the executor is set by statute. There is an commission of 6% on income generated on estate assets between date of death and date of distribution and on principal as follows: 5% of the first $200,000, 3 1/2% of the next $800,000 and 2% of the amount in excess. There is a case, In re Summerlyn, which seems to indicate that a party can question the overall fee and that a commission in excess of $10,000 should be accompanied by proof of the extent work was undertaken. Typically, the statutory commission is granted.
When an executor dies before, completing her job, commissions may be allocated between her estate and the new executor. The allocation is based upon mutual agreement or, in the absence of same, a determination of the court as to time expended and proportion of work completed.
The fact that you are executor of your mother's estate is irrelevant. The fact that you are an heir of her estate and have a vested interest in your grandmother's estate gives you standing to file a petition to serve.
Steve Fromm's suggestion is excellent. Offer to serve without commission. This has worked for me on more than one occasion. I would also move to block the appointment of your uncle as his conduct shows that he cannot complete the administration objectively.
This response does not constitute the establishment of an attorney-client relationship. It is also not to be taken as firm legal advice as such would be contingent on a full inquiry by the attorney into the complete background of the facts and circumstances surrounding this matter. The response is meant to be a helpful guide to a question in a manner which reflects the limited information provided by the inquirer.
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The overall executor fee needs to be reasonable. Whatever the fee will be it would be split between the two executors who have served as such. The split would be based on the services performed. If mom has done the whole estate administration except for a few minor steps the bulk of the fee should be paid to her. As an aside, it would be extremely unfair for your uncle to benefit from mom's death. You need to contest your uncle petitioning to be the grandmother's executor. Have the attorney you retain challange his petition and have him petition that you will serve out the term WITHOUT compensation. Who do you think the judge will have serve after he contested your mom's fee and you will serve out the term for free?
You cannot do this on your own, so retain estate litigation counsel to assist you.
Hope this helps.
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4 lawyers agree
I agree with both prior responses. I would add that, if the matter of your mother's compensation has not been resolved, then that should still be determined by the court. Your uncle, if he serves, would certainly be entitled to reasonable compensation for whatever work he does. It does not sound like that would be much.
I also like the suggestion of your agreeing to act without compensation. That does not resolve the issue of your mother's compensation, however. It would seem appropriate for you to petition the court for direction on that issue, regardless what is decided as to who takes over as PR.
I am licensed to practice law in the State of Michigan and have offices in Wayne and Ingham Counties. My practice is focused in the areas of estate planning and probate administration. I am ethically required to state that the above answer does not create an attorney/client relationship. These responses should be considered general legal education and are intended to provide general information about the question asked. Frequently, the question does not include important facts that, if known, could significantly change the answer. Information provided on this site should not be used as a substitute for competent legal advice from a licensed attorney that practices in the subject area in your state. The law changes frequently and varies from state to state.