An executor in Western Australia can take back every dollar they’ve reasonably spent on the estate. What an executor is entitled to for their own time is a different question. Nobody is paid for the time simply by holding the office.
What expenses can you claim back?
You can reimburse yourself out of the estate for your reasonable costs and out-of-pocket expenses while doing the job. Estate expenses include:
- travel and parking;
- the Court filing fee for your application for Probate;
- a locksmith, cleaning or storage;
- insurance premiums and valuation fees; and
- the funeral account.
You can pay these from the estate account if there’s money in it. Otherwise you pay them yourself and take the money back later. See Organising estate paperwork after a death in WA.
It is essential to keep records. An executor who can’t produce the invoice and the matching bank entry can find the item disallowed when the accounts are examined by the Court, which leaves them out of pocket for money they really spent. See What is passing of accounts in Western Australia?
Are legal and other professional fees payable from the estate?
Legal fees are payable from the estate if they are reasonable. What counts as reasonable turns on the size and the complexity of the estate. It would ordinarily cover:
- the application for the grant;
- advice on your duties and powers;
- the conveyancing if a house has to be sold or transferred; and
- preparing the estate accounts.
Real estate agent commission and accounting fees are treated the same way.
Are you paid for your time as executor?
You are not paid for your time simply by holding the office. Payment for the work you do, which is called commission, comes from one of three places.
The Will. A charging clause in the Will authorising payment to the executor settles it without anyone else’s agreement. It’s common if the person named is a professional.
The beneficiaries. The beneficiaries who bear the cost, ordinarily the ones taking what is left after the debts and gifts are paid, can agree in writing to pay you. If Adam and Beth take the rest of the estate between them and both agree, you don’t need to trouble the Court.
The Court. If neither of those applies, you can apply to the Supreme Court of Western Australia for an order for commission. That is a contested step rather than a formality, so take advice before you commit the estate to it.
| Reimbursement of expenses | Commission | |
|---|---|---|
| What it covers | money you actually paid out for the estate | payment for your time, trouble and responsibility |
| Whose permission you need | none, if the expense was properly incurred | the Will, the beneficiaries or the Court |
| The limit | the amount properly incurred | 5% of the gross value of the trust property; less if the Court thinks fit |
| When you take it | during the administration | after the Will, the beneficiaries or the Court allow it |
How much commission can the Court allow?
The commission allowed can’t exceed 5% of the gross value of the trust property.
The Court will award an amount depending on various factors including:
- the complexity of the work involved in the administration;
- the time spent by the executor in connection with the administration;
- the value of the estate and the nature of the assets;
- the length of the administration;
- whether work was done by the executor personally or delegated to professionals; and
- whether the estate has benefited from the executor’s management.
The Court may take into account lengthy delays, lack of communication and inappropriate conduct by the executor to reduce or extinguish any claim for a commission.
Practical tips for claiming a commission
You can maximise your prospects of claiming an executor’s commission by:
- keeping detailed records of your management of the estate, including the time you spend;
- undertaking your duties efficiently, transparently and timeously; and
- seeking professional assistance where necessary in the course of the administration.
Frequently asked questions
Can you pay yourself commission before anyone agrees?
No. Taking commission without the authority of the Will, the beneficiaries or the Court is a breach of your duty and the amount is recoverable from you.
Can the beneficiaries agree without going to Court?
Yes, if they are adults with capacity and they agree in writing. If a beneficiary is under 18 or lacks capacity, the application goes to the Court.
Can the Court refuse commission altogether?
Yes. Commission is a discretion rather than an entitlement, so the Court can allow a small portion of the ceiling or none of it.
Are legal fees payable from the estate?
Yes, if they are reasonable. Advice on your duties is an estate expense, so the cost of getting it right comes out of the estate rather than your pocket. See What are the duties of an executor in Western Australia?
Ask us before you take anything out of the estate
We advise executors on what can be reimbursed from the estate and on whether commission is worth pursuing in your matter. Call the probate team on (08) 9220 4490 or see our estate administration page.
Related: What is passing of accounts in Western Australia?
This article is general information about the law in Western Australia and is not legal advice. Your circumstances may change the answer, so please get advice on your own situation.
