Applying for estate commission: a guide for executors

15 August 26
Uncategorized

Yes, an executor in Australia can apply for commission. The two routes are a written agreement with all beneficiaries or, where no agreement is reached, an application to the relevant Supreme Court. In New South Wales, that application is made under s86 of the Probate and Administration Act 1898 (NSW), which gives the court power to allow a commission that is “just and reasonable.” If you are in NSW and ready to act, go straight to the step-by-step section below covering the motion, affidavit, and passing accounts. This guide was prepared by Simons George Legal, a wills and estates practice based in Bondi, Sydney, with reference to the Supreme Court of New South Wales procedural guidance.

Key takeaways

Executors in Australia can claim commission through beneficiary agreement or a Supreme Court application, with NSW governed by s86 of the Probate and Administration Act 1898 (NSW) and the process centred on a motion, affidavit, and passing accounts.

Point Details
Two routes to commission Reach a written agreement with all beneficiaries, or apply to the Supreme Court if agreement is not possible.
Court factors Size, complexity, time spent, conduct, and benefit to the estate all influence the commission amount awarded.
Typical ranges Practice guides report commission commonly in the range of 1–5% on relevant amounts; courts exercise discretion and rarely apply a flat rate.
NSW filing essentials File a notice of motion and affidavit in the probate file; serve beneficiaries with passing accounts before filing.
Simons George Legal Offers probate and estate administration support, affidavit drafting, and court representation for commission applications across Sydney and NSW.

Table of Contents

Who decides whether an executor gets paid and who can claim

The starting point in every Australian jurisdiction is that the office of executor is prima facie gratuitous. That means you are not automatically entitled to payment simply because you took on the role. Payment requires one of three things: a clause in the will authorising commission, a written agreement signed by all beneficiaries, or a court order.

When a beneficiary agreement is sufficient:

  • All beneficiaries are adults with legal capacity.
  • All beneficiaries consent in writing to the amount and timing of payment.
  • There is no dispute about the commission figure.
  • The estate is straightforward, and the accounts are clear.

When a court application is needed:

  • The will is silent on commission and beneficiaries cannot agree.
  • One or more beneficiaries object to the amount claimed.
  • A beneficiary lacks capacity (a minor or person under a guardianship order).
  • The executor is a professional (solicitor or trustee company) and the entitlement is unclear.
  • The estate is large, complex, or has taken significant time to administer.

Joint executors typically make a joint application, with the commission divided between them in proportions reflecting each person’s contribution. Administrators (appointed where there is no will) can also apply for commission on the same statutory basis as executors. If you have done the heavy lifting while a co-executor was largely absent, document that clearly before filing.

How courts assess commission and typical guideline ranges

Courts exercise a broad discretion. There is no fixed tariff, and a judge will not simply apply a percentage to the gross estate value and hand it over. The assessment is holistic, weighing the work actually done against the benefit delivered to the estate.

Factors courts typically weigh:

  • Size and complexity of the estate (number of assets, jurisdictions, business interests).
  • Time and effort spent by the executor on administration tasks.
  • Degree to which professional advisers (solicitors, accountants) were engaged to do work the executor might otherwise have done.
  • Conduct of the executor: delays, communication failures, or conflicts of interest can reduce or extinguish a claim.
  • Benefit actually brought to the estate (successful asset recovery, favourable property sales).
  • Whether the executor acted efficiently and in the interests of beneficiaries.

Practice guides report that commission awards in Australia commonly fall in the range of 1–5% on relevant amounts, though courts rarely apply a single percentage across the whole estate.

Illustrative example (not legal advice): Suppose an estate has a gross value of $800,000, comprising a residential property, a share portfolio, and two bank accounts. The executor spent 14 months administering the estate, managed the property sale personally, and resolved a disputed superannuation nomination. A court might assess commission on the capital receipts and income separately, arriving at a lump sum figure rather than a straight percentage. The final order could be anywhere from $8,000 to $40,000 depending on the factors above. Every estate is different.

Diagram showing executor commission assessment example

Pro Tip: Keep a running log of every task you perform as executor, with dates and approximate time. Courts favour transparent, contemporaneous records over a retrospective summary prepared just before filing.

How to apply for executor commission in New South Wales

In NSW, the application is filed in the probate file at the Supreme Court of New South Wales. The short version: file a notice of motion and a supporting affidavit, serve interested parties, and attend a hearing if the matter is contested. Here is the order of operations.

  1. Confirm the estate is substantially complete. Commission applications are typically made near the end of administration, once assets have been collected, debts paid, and tax obligations met.
  2. Prepare passing accounts. Draft a full set of estate accounts showing all receipts, payments, asset valuations, and the proposed commission figure. These accounts are served on beneficiaries before filing.
  3. Serve beneficiaries with the accounts. Give beneficiaries a reasonable opportunity to review and raise objections. Record all correspondence.
  4. Prepare the affidavit of administration. This is the core document. It should set out a chronological account of every significant task performed, the time spent, the challenges encountered, and the benefit brought to the estate.
  5. File the notice of motion in the probate file at the Supreme Court registry. The motion should specify the amount of commission sought and the statutory basis (s86 of the Probate and Administration Act 1898 (NSW)).
  6. Serve all interested persons with the filed motion and affidavit, including beneficiaries and any co-executors.
  7. Attend the hearing if the matter is listed before a judge or registrar. Uncontested applications are often dealt with on the papers; contested matters require oral argument.
  8. Obtain the court order and retain a sealed copy. The commission is then paid from the estate before final distribution.

Documents the court expects:

  • Copy of the will and grant of probate.
  • Death certificate.
  • Affidavit of administration (detailed, chronological).
  • Passing accounts (itemised receipts and payments).
  • Asset valuations and sale documents.
  • Receipts for all disbursements and professional fees paid.
  • Records of time spent (timesheets or a task log).
  • Correspondence with beneficiaries regarding commission.
  • Any prior written agreement or charging clause.

Common pitfalls: Applying too early (before accounts are finalised), filing incomplete accounts, and failing to serve all interested parties are the three most frequent reasons applications are delayed or refused. See the NSW executor’s probate guide for detailed filing instructions.

Where to apply across Australia: a state-by-state reference

Each state and territory gives its Supreme Court (or equivalent) the power to allow executor commission. The statutory basis differs, but the underlying principle is consistent: the court may allow a commission that is just and reasonable for the pains and trouble of the executor.

In South Australia, the Law Handbook confirms that where a will is silent, an executor may still apply to the court for commission under the relevant succession law. For NSW executors who need step-by-step filing help, the Simons George Legal probate guide covers the full process from grant to distribution.

Passing accounts and what you must disclose

Passing accounts is often a prerequisite for a commission application, not an optional extra. Courts expect clear, itemised accounts that allow a beneficiary or judge to trace every dollar that moved through the estate.

A complete set of estate accounts typically includes:

  • Opening balances for each asset and account at the date of death.
  • All receipts: sale proceeds, income collected, insurance payouts, superannuation received.
  • All payments: debts, funeral costs, taxes, professional fees, and administration expenses.
  • Asset valuations at date of death and at date of sale or transfer.
  • Capital gains or income tax collected and remitted.
  • The proposed commission figure and its basis.
  • Closing balances showing the net estate available for distribution.

Poor accounting is one of the fastest ways to lose a commission claim. Courts have reduced or refused commission where accounts were incomplete, where the executor could not explain delays, or where beneficiaries were kept in the dark about what was happening with the estate. Unexplained gaps in the accounts signal either poor administration or, worse, a conflict of interest.

For a detailed walkthrough of what estate accounts should contain, see the estate accounting guide for executors published by Simons George Legal.

Can professional executors claim both fees and commission?

The short answer is usually no. In most Australian jurisdictions, a lawyer acting as executor is not entitled to both professional legal fees and a separate commission for the same work. The Law Handbook (SA) states this plainly, and the same principle applies in NSW and Victoria.

The Law Society guidance makes clear that courts scrutinise charging clauses carefully and may reduce or refuse commission even where a will contains one. A clause that was not explained to the will-maker before signing, or where informed written consent was not obtained, is vulnerable to challenge.

Practical steps for professional executors:

  • Separate professional legal work (drafting, court filings, legal advice) from non-professional executorial tasks (collecting mail, arranging valuations, liaising with agents).
  • Record time for each category separately from the outset.
  • Charge professional fees for legal work and seek commission only for executorial work that falls outside the scope of legal services.
  • Obtain beneficiary consent or a court order before paying yourself anything from the estate.
  • Where a charging clause exists in the will, confirm it was explained to the will-maker and that informed consent was given.

Victorian guidance from LawHub notes that a fee permitted by a will is limited unless the will-maker gave informed written consent, reinforcing that the clause alone is not enough. Courts retain the power to review and reduce excessive commissions regardless of what the will says.

How long does the process take and what does it cost?

Timing varies considerably. A straightforward estate where beneficiaries agree on commission can be resolved in a matter of weeks. A contested court application in NSW, once you factor in account preparation, filing, service, and a hearing date, typically takes several months. Complex estates with disputed accounts or multiple beneficiaries can stretch longer still.

Key drivers of delay:

  • Time needed to finalise and audit estate accounts.
  • Disputes with beneficiaries over the commission amount or the accounts.
  • Obtaining valuations for real property, businesses, or unusual assets.
  • Court listing delays and registry processing times.
  • Late discovery of estate liabilities or assets.

Typical cost components:

  • Court filing fees (check the current Supreme Court fees schedule for your jurisdiction, as these are updated periodically).
  • Solicitor fees for drafting the affidavit, accounts, and motion.
  • Accountant fees for preparing or auditing estate accounts.
  • Valuation costs for property or business assets.
  • Potential hearing costs if the matter is contested.

The most effective way to reduce both time and cost is early engagement with beneficiaries. If you can reach a written agreement before filing, you avoid court altogether. Detailed records kept from day one also reduce the time spent reconstructing the administration history at the end. For a breakdown of what causes delays in NSW probate matters, the NSW probate timeline guide is worth reading before you file.

Documents and evidence to include when filing for commission

The court expects a comprehensive affidavit and full accounts. Incomplete filings are the single most common reason applications stall. Prepare these in order:

  1. Copy of the will (including any codicils) and the grant of probate or letters of administration.
  2. Death certificate of the deceased.
  3. Affidavit of administration setting out a chronological account of every significant task performed, with dates, time spent, and outcomes.
  4. Passing accounts (itemised receipts, payments, opening and closing balances).
  5. Asset valuations at date of death and at date of realisation or transfer.
  6. Sale documents for any real property or significant assets sold during administration.
  7. Receipts and invoices for all disbursements and professional fees paid from the estate.
  8. Time records or timesheets showing hours spent on each category of task.
  9. Correspondence with beneficiaries about the commission claim, including any written consent or objections received.
  10. Any charging clause in the will or prior written agreement about commission.

An affidavit entry might read: “On 14 March 2025, I attended the deceased’s property at [address] to collect and catalogue personal effects, arrange for a locksmith to re-key the premises, and meet with the real estate agent to discuss the proposed listing strategy. Time spent: 3.5 hours.” That level of specificity is what courts want to see.

Pro Tip: Attach a one-page summary table to the affidavit listing each category of task, the total hours spent, and a brief description. Courts and registrars find it easier to assess commission when the work is presented in a structured format rather than buried in narrative prose.

Applying for executor commission can involve court proceedings, and the cost of legal help sometimes stops people from pursuing a legitimate claim. Simons George Legal offers No Win, No Fee arrangements for eligible cases, meaning you do not pay legal fees upfront if your matter qualifies.

Eligibility is assessed during a free initial consultation, so there is no cost to finding out where you stand. For executors facing beneficiary objections or a disputed commission claim, this arrangement removes the financial barrier that might otherwise prevent you from getting the outcome you are entitled to.

If you have done the work of administering an estate and believe you have a legitimate claim for commission, book a free case assessment with Simons George Legal to discuss your options.

No Win, No Fee arrangements are subject to case eligibility and a written costs agreement. Liability limited by a scheme approved under Professional Standards Legislation.

An estate lawyer’s perspective on commission claims

Applying for commission is more common than most executors realise, and it is entirely legitimate. The process is manageable when records are kept properly and steps are taken in the right order. What tends to go wrong is not the law itself but the administration habits that precede the application: tasks done without being recorded, beneficiaries kept at arm’s length, and accounts assembled in a rush at the end.

Executor logging tasks in journal

The executors who succeed with commission claims are almost always the ones who treated the role like a job from day one, keeping notes, saving receipts, and communicating regularly with beneficiaries. By the time they file, the affidavit practically writes itself.

If the estate is complex, if beneficiaries are disputing the claim, or if you are a professional executor unsure about the boundary between fees and commission, get tailored legal advice early. The cost of a consultation is a fraction of what a contested hearing costs, and early advice often resolves the dispute before it reaches court.

Simons George Legal’s probate and estate administration service covers every stage of a commission application: reviewing your records, drafting the affidavit of administration, preparing passing accounts, and representing you before the Supreme Court if the matter is contested.

Simons George Legal

Executors who come to Simons George Legal early typically spend less time and money on the process because the accounts and affidavit are prepared correctly the first time. For beneficiaries who object to a commission claim, the firm’s estate litigation team can advise on the merits and represent your interests at a hearing.

New clients receive a complimentary 30-minute consultation. Book yours through the wills and estates page to discuss your commission application, the documents you need, and the realistic prospects of success.

Sources

This article is general information, not a substitute for advice from a qualified lawyer. Consult a qualified legal professional about your own circumstances before acting on anything here.

FAQ

Can an executor claim commission if the will does not mention it?

Yes. Where a will is silent on commission, an executor can still apply to the relevant Supreme Court under the applicable state or territory statute, such as s86 of the Probate and Administration Act 1898 (NSW). The court will decide whether a commission is just and reasonable based on the work done and the estate’s complexity.

Who decides how much an executor gets paid?

Either the beneficiaries (by written agreement) or the Supreme Court. Where beneficiaries cannot agree or one lacks capacity, the court exercises a broad discretion, weighing estate size, complexity, time spent, and the executor’s conduct.

Does an executor have to show accounts to beneficiaries?

Yes. Passing accounts to beneficiaries is standard practice and typically required before a commission application is filed. Courts expect itemised accounts covering all receipts, payments, and asset valuations, and will consider unexplained gaps or poor communication when assessing any commission claim.

What is the three-year rule for estates?

There is no single “three-year rule” in Australian succession law. Executors are generally expected to complete administration within a reasonable time, and courts may take prolonged unexplained delays into account when assessing a commission claim. If you are concerned about timing in your estate, seek legal advice specific to your jurisdiction.

Generally no. In most Australian jurisdictions, a lawyer acting as executor is not entitled to both professional legal fees and a separate commission for the same work. The legal fees are treated as covering the professional work performed; commission may only be claimed for executorial tasks that fall outside the scope of legal services, and only where a clear charging clause or prior agreement exists.

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