Is there a legal procedure to follow to do this? Does the court have to approve it?
Estate Planning Attorney
There is no strict procedure which is to be followed in taking a commission. Many executors wait until the work is complete. However, it is appropriate to take partial commissions based on the percentage of work completed in administering the estate. Frequently, if the assets have been marshaled and any death tax returns are filed, I'll recommend that 50% of the commissions be taken with the balance to be taken when the estate is ready to be wrapped up and distributed. If all of the beneficiaries consent (which should be confirmed by obtaining written release and refunding bonds), then no court approval is necessary. If this consent cannot be obtained, then you need to file for the approval of an account in which you request the award of your commission.
Commissions are set by statute and most courts will allow the maximum amount to be taken. However, there is a case known as In Re Summerlyn which states that commissions need to reasonable and can be adjusted down if the amount of effort does not warrant the amount of commission to be taken.
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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