Written by: Hugo Morris
Concerned an executor is claiming too much from the estate? If you’re a beneficiary or interested party in a Queensland-based estate and believe an executor’s claim for commission is excessive or unjustified, you may have grounds to contest it.
Under Queensland law, you can challenge an executor’s claim if you can provide sufficient supporting evidence.
Evidence might include:
- Emails
- Invoices from solicitors assisting to administer the estate
- Financial statements
- Lack of supporting records from the executor.
Before we review the process for contesting an executor’s claim, it’s important to first understand what executors are legally entitled to receive from the estate.
Executors are Entitled to Be Paid from the Estate
In Queensland, executors are entitled to claim commission for their “pains and troubles” in administering an estate.
There is no fixed rate for executor’s commission in Queensland. Instead, claims are calculated according to the circumstances.
The amount paid is either agreed between the beneficiaries and the executor, paid as set out in the Will, or ordered by the Court.
How an Executor’s Commission is Determined
To determine the executor’s commission, factors considered include:
- the nature of the estate;
- the extent of the executor’s involvement;
- level of assistance from professional advisors, and;
- the executor’s conduct.
However, if you believe the executor is claiming an excessive commission amount from the estate, here’s how you can challenge their fees.
Grounds for Contesting an Executor’s Commission
You may have grounds to contest an executor’s commission claim for the following reasons.
Lack of Transparency
Executors must be transparent about their actions. If an executor doesn’t provide detailed accounts or justifications for their commission, you may have grounds for contesting their commission.
Example: An executor simply states they are claiming $30,000 in commission.
However, they don’t include detail regarding the estate’s complexity, time spent on tasks and whether they engaged a professional advisor to assist.
Excessive Claim
The claimed amount is disproportionately high relative to the estate’s value, or the work performed.
Example: The estate is worth $400,000, and the executor claims $50,000 in commission.
In Queensland, there is no flat rate that the Courts will award for commission. However, the Courts will consider the work completed by professional advisors along with the size and complexity of the estate before determining what is a reasonable award of commission.
Misconduct or Negligence
The executor has mismanaged the estate or acted in their own interest.
Example: The executor fails to pay estate debts on time.
Or, they rent out an estate property to a friend at a below-market rate.
No Beneficiary Agreement
The executor seeks commission without the beneficiaries’ consent and without court approval.
Example: Despite the lack of beneficiary agreement or provision in the Will, the executor transfers $20,000 to themselves in commission.
This may be challenged as premature and unauthorised.
4 Steps to Contest a Commission Claim
If you believe you have grounds to dispute the executor’s commission, you can take the following steps to contest it.
1. Request Detailed Accounts
Ask the executor for a full account of their activities and the basis for the commission claim.
This typically includes a spreadsheet listing all the tasks performed. This may include time spent on each task, any expenses incurred and invoices for professional advisors engaged by the executor.
2. Ask a Solicitor to Review the Executor’s Claim
Consult with an estate litigation solicitor to assess the validity of the claim.
An estate litigation solicitor can examine the following:
- The value and complexity of the estate
- The executor’s actual performance of their duties
- The professional services engaged
- The reasonableness of the commission claimed in reference to past cases and legal norms.
- Whether the executor performed their duties
3. Negotiate with the Executor
Attempt to reach an agreement with the executor on a fair commission amount.
A solicitor can also help with the negotiation process to avoid unnecessary legal costs and the stress involved in court proceedings.
If a fair outcome cannot be reached by negotiation, you may need to proceed to a contested hearing. In this case, the court will determine the appropriate commission. This leads into our final step.
4. Court Application
If negotiations fail, you can apply to the court to review and determine the appropriate commission. You will need to create an application with the Supreme Court of Queensland.
The application process includes preparing and filing an affidavit as well as supporting evidence. A solicitors can help you draft and submit the necessary documents and file with the Supreme Court on your behalf.
Act Before the Estate is Distributed
While there’s no strict deadline to contest an executor’s commission, it’s important to take action as soon as possible, especially before the estate is fully distributed. Delays can complicate the process and limit your options.
Disclaimer:
The information contained in this article is for general informational purposes only and is not intended to provide legal advice or substitute for the advice of a professional. This information does not consider your personal circumstances and may not reflect the most current legal developments. Should you need advice, please contact our firm for targeted information relating to personal your situation.
Greenhalgh Pickard’s Estate Litigation Team
