Executors require the consent of beneficiaries or authorisation in the will itself, for payment of remuneration from a deceased estate for administration services they perform.
It is also open to an executor to seek an order from the court approving payment of and the amount of executor’s commission.
But where a beneficiary is an infant of under a legal disability, court approval is always required.
The Queensland Supreme Court recently considered such an application by Paul McLaren who was appointed executor of the estate of his son, Michael.
Michael died in June 2016, leaving a $1.2M estate including two cattle grazing properties and an earthmoving business, all carried out or located near Mackay in Central Queensland.
The beneficiary of the entire estate under the deceased’s last will of February 2013 was his son Cooper, who was aged 3 at the time of his father ‘s death.
The only other benefit under the will was a right to reside in a property given to Cooper’s mother Jenny.
Paul lived in New South Wales and travelled to Mackay to administer the estate, which ended up taking six and a half years to complete.
He approached the court for an order that he be paid the sum of $48,420 from the estate as executor’s commission for his estate administration efforts, representing 4% of the estate’s value and rounding out to about $7,500 per year.
Both Succession Act 1981 (Qld) section 68 and Uniform Civil Procedure Rules that apply to such applications set out the information that must be put before the court and the how an appropriate sum is to be arrived at by reference in particular to the extent of work performed.
Justice Graeme Crow was tasked with reviewing the detailed information provided by Paul in support of his claim. He considered a number of cases where either percentage ranges for income and capital, or fixed amounts on a ‘work done’ basis had been utilised to arrive at awards of commission.
His Honour agreed that whilst the monetary level of the estate was not large, it had been an arduous administration for a number of reasons.
He had faced animosity and personal abuse in carrying out his duties that included resolving Jenny’s claim for a family provision; dealing with superannuation fund death benefits; reconstructing business records to identify estate assets & liabilities; clearing more than 100 items of plant & equipment by auction; winding up the earthmoving business; and selling the rural properties.
The judge noted that the fees charged by professional trustee companies to administer estates of far less complexity were substantially higher than the sum sought by Paul.
By reference to the principles set out in earlier decisions of Re Estate of Celestino Ghidella  QSC 106 and Re Estate of Badstuebner  QSC 144, his honour concluded that Paul’s claim of 4% of capital in a modest estate that required a complicated administration, was “a not unduly generous reward for the work involved”.
He ordered that Paul be paid the sum claimed from the estate and also that Paul’s costs of the application be paid from the estate on an indemnity basis.