What the rule says
New York's Surrogate's Court Procedure Act § 2307 sets a statutory schedule for the commissions an executor or administrator of a New York estate is entitled to receive. The commissions are calculated as percentages of the value of the estate, applied in tiers:
- 5% on the first $100,000 of the estate - 4% on the next $200,000 (i.e., values from $100,001 to $300,000) - 3% on the next $700,000 (i.e., values from $300,001 to $1,000,000) - 2.5% on the next $4,000,000 (i.e., values from $1,000,001 to $5,000,000) - 2% on amounts over $5,000,000
The schedule applies to the value of the property the executor or administrator actually received, distributed, and accounted for. It does not apply to specific bequests of real or personal property that pass directly to a named beneficiary without the executor's involvement, nor to real property that is not sold during administration.
The commission is divided into a receiving commission and a paying commission, with each calculated separately. In effect, the executor receives the full statutory commission only when the property both came into the executor's hands and was disbursed by the executor.
What this means in practice
New York's statutory commission schedule is more formal than the "reasonable fee" standards used in many other states (where the executor's compensation is determined by reasonableness based on time spent, complexity, and other factors). New York's schedule produces a predictable, calculable result based on estate size:
- A $500,000 estate produces commissions of approximately $19,000 (5% of $100,000 + 4% of $200,000 + 3% of $200,000). - A $2 million estate produces commissions of approximately $44,000. - A $10 million estate produces commissions of approximately $169,000.
Multiple executors share the commission. SCPA § 2307 specifies how multiple executors split the commission — generally, the commissions are divided among them, though estates valued over $300,000 with two or more executors give each executor a full commission for receiving and a full commission for paying, capped at the total amount one executor would receive.
Key practical points:
- The executor can waive commissions. A family-member executor often waives commissions, especially when the executor is also a primary beneficiary (for whom the commission would simply reduce the eventual inheritance after taxes). - The will can modify commissions. A New York will can specify a different commission structure for the executor, including a flat fee or higher percentages. The statutory schedule applies only when the will is silent. - Commissions are taxable as ordinary income. Executor commissions are subject to federal and state income tax. For an executor who is also a beneficiary, waiving commissions and taking the inheritance instead may produce a more favorable tax outcome (inherited property generally receives a stepped-up basis without income tax). - Trustees follow a separate schedule. Trustee commissions are governed by SCPA § 2308 (lifetime trustees) and § 2309 (testamentary trustees) and are calculated differently — typically as a percentage of trust principal annually plus a percentage of income.
How this compares to other states
Most states use a "reasonable fee" standard rather than a fixed schedule:
- California sets executor commissions by statute (Cal. Probate Code § 10800) using a similar tiered percentage but with somewhat different rates. - Texas uses a 5% commission on cash receipts and disbursements, no commission on real property held and distributed in kind, plus reasonable additional compensation for unusual services (Tex. Estates Code § 352). - Florida awards reasonable compensation, with statutory presumptions based on a percentage schedule (Fla. Stat. § 733.617). - Pennsylvania uses a reasonable-fee standard without a fixed schedule.
New York's schedule produces clearer expectations but less flexibility than reasonable-fee jurisdictions.
What you can do about it
For estate planners drafting New York wills:
- Consider whether to specify executor compensation. A will can leave the statutory schedule in place, set a flat fee, increase or decrease the percentages, or specify other arrangements. - Coordinate with the executor's tax position. A family-member executor who is also a beneficiary may benefit from waiving commissions to avoid ordinary-income tax on the commission while receiving the same property as inherited principal. - Address multiple executors. If multiple executors will serve, the will should clarify how commissions are to be divided.
For an executor of a New York estate:
- Calculate commissions carefully. The tiered schedule produces specific dollar amounts based on estate size. Errors in calculation can lead to disputes with beneficiaries. - Document the basis for receiving and paying commissions. Commissions are paid on property received and disbursed; supporting documentation matters. - Consider waiving commissions when appropriate. Family executors who are also primary beneficiaries often waive commissions for tax efficiency and family harmony. - Coordinate with the estate's accountant. Commissions and the estate's overall financial picture should be considered together.
Who this affects most
The commission schedule is most relevant for:
- Executors of New York estates calculating their compensation - Estate planners deciding how to address compensation in a New York will - Beneficiaries of New York estates calculating expected distributions after commissions - Comparative analysis of New York probate against states with reasonable-fee standards
New York's statutory schedule is one of the most predictable executor-compensation systems in the country. The certainty is helpful for planning but offers less flexibility than the reasonable-fee approach used elsewhere.