Kenneth Vercammen is a Middlesex County trial attorney who has published 130 articles in national and New Jersey publications on Criminal Law and litigation topics. He was awarded the NJ State State Bar Municipal Court Practitioner of the Year. He lectures and handles criminal cases, Municipal Court, DWI, traffic and other litigation matters. He is Co Chair of the ABA Criminal Law Committee,GP and was a speaker at the ABA Annual Meeting. To schedule a confidential consultation, email us at VercammenAppointments@NJlaws.com, call or
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Kenneth Vercammen & Associates, P.C.

2053 Woodbridge Avenue - Edison, NJ 08817
(732) 572-0500
www.njlaws.com

Monday, October 26, 2009

Executor Commissions in a Probate Case

Executor Commissions in a Probate Case

The Law Offices of Kenneth Vercammen & Associates, handles Probate, contesting wills, contesting estates, Probate disputes, inheritance problems, estate mismanagement and theft, undue influence, contentious probates, and other relevant issues. We encourage you to consult an attorney if you are faced with any of these situations.
Do you think you're entitled to money or might be entitled to money from an estate or trust? Do you believe that someone is unfairly claiming money or property that is rightfully yours? Has the executor not fulfilled their duties? If so, and you are a prospective plaintiff or defendant, then you may need an attorney to protect your rights.

There are three kinds of commission: Corpus commission (Title 3b: 18-25), income commission (Title 3b: 18-24), and termination commission (Title 3b: 18-28).

Corpus commission - is similar to a guardianship. Take the first $400,000, multiply one half of 1%, multiply again by the number of months of the period of accounting divided by 12. Over $400,000, multiply by .003 by anything over $400,000 times the number of months divided by 12. The idea is that if you only work for 3 months, you will not get the whole year. When there is more than one trustee, you can add 1/5 of the corpus commission for each additional trustee. Trustee is also allowed to take income commission, which is 6% of the income commission.

These areas are extremely complex, and you should not attempt to reach a decision on whether or not to take action (and, if so what action to take) without the assistance of counsel.

You must call to schedule an in-office consultation as we cannot provide legal advice over the phone.

The following New Jersey statute sets forth the annual commissions on corpus

3B:18-25. Fiduciaries [Executors and Administrators] may take annual commissions on corpus

3B:18-25. a. Fiduciaries may annually, without court allowance, take commissions on corpus (including accumulated income which has been invested by the fiduciary) in the amount of $5.00 per thousand dollars of corpus value on the first $400,000.00 of value of corpus and $3.00 per thousand dollars of the corpus value in excess of $400,000.00.

b. Notwithstanding the provisions of subsection a. of this section, if the fiduciary is a banking institution, foreign bank or savings and loan association authorized to exercise fiduciary powers, the fiduciary shall be entitled to such commissions as may be reasonable.

c. Notwithstanding the provisions of subsection a. of this section, a fiduciary may take a minimum commission of $100.00 annually.

d. The value of the corpus for the purpose of this section shall be the "presumptive value" as defined in N.J.S. 3B:18-18 or, at the option of the fiduciary, the value at the end of the period.

e. Upon application of a person interested in the trust or guardianship, a court may review the reasonableness of the commissions of the fiduciary, provided, however, the fiduciary shall be entitled to receive at least the compensation provided for all fiduciaries as set forth in subsections a. and c. of this section.

3B:18-25. 1. Taking annual amount on accounts of corpus commissions: two or more fiduciaries Taking annual amount on accounts of corpus commissions: two or more fiduciaries. If there are two or more fiduciaries, the amount of the annual commissions taken pursuant to N.J.S. 3B:18-25 may equal the commissions which may be taken pursuant to that section when there is but one fiduciary, plus one-fifth of the commissions for each fiduciary more than one. No one fiduciary shall be entitled to any greater commission than that which would be allowed if there were but one fiduciary involved.

3B:18-25.2. Powers of qualified bank; duties of agent 12. a. Notwithstanding any law to the contrary, a qualified bank acting in any capacity authorized pursuant to section 28 of P.L. 1948, c.67 (C. 17:9A-28) on behalf of a trust or estate may employ and pay reasonable compensation to any person, including attorneys, auditors, investment advisers or other agents, even if they are affiliated or associated with the qualified bank, to advise or assist the qualified bank in the performance of any of its administrative duties, whether or not discretionary, and to act without independent investigation upon their recommendation, so long as the qualified bank exercises care, skill, and caution in: selecting the agent;establishing the scope and terms of the agent's duties consistent with the purpose and terms of the governing trust instrument; and periodically reviewing the agent's actions in order to monitor the agent's performance. A qualified bank that delegates investment functions to an investment adviser shall also comply with the requirements of sections 8 and 10 of P.L. 1997, c.26 (C. 3B: 20-11.8 and 3B:20-11.10).

b. In performing any agency function, the agent shall owe to the qualified bank and the beneficiaries the same duties as the qualified bank and shall be held to the same fiduciary standards as the qualified bank.

c. In the absence of express contrary provisions in the trust instrument, a qualified bank which employs an agent other than an investment adviser or investment manager, may pay the agent from the fiduciary fund if the qualified bank reasonably believes in the exercise of its discretion that such an arrangement is in the best interests of all interested persons and will improve the efficiency of the administration of the fiduciary fund. In the absence of express contrary provisions in the trust instrument, a qualified bank which delegates investment and trust asset management functions to an investment adviser or an investment manager shall comply with the cost control and other requirements of sections 8 and 10 of P.L. 1997, c.26 (C. 3B: 20-11.8 and 3B:20-11.10).

d. A qualified bank which substantially complies with the requirements of subsections a. and c. of this section shall not be liable to the beneficiaries or to the trust or estate for the decisions or actions of the agent, and shall not, solely by reason of the delegation, be deemed to engage in acts of self-dealing or a conflict of interest.

e. By accepting an appointment as agent from a qualified bank acting as a fiduciary of a trust or estate that is subject to the law of New Jersey, the agent submits to the jurisdiction of the courts of New Jersey, even if the agency agreement provides otherwise.

3B:18-26. Failure to take commissions annually shall not constitute a waiver thereof The failure of a fiduciary to take commissions in any year shall not constitute a waiver by the fiduciary to take in a subsequent year the commissions not taken for that year.

3B:18-27. Commissions taken annually subject to review Commissions taken as provided in N.J.S. 3B:18-25 shall be subject to review on intermediate and final accountings, and to the extent that aggregate commissions so taken exceed the commissions allowable under this article, they may be disallowed.

3B:18-28. Corpus commissions on termination of trust, guardianship or upon distribution of assets In addition to the annual commissions on corpus, upon termination of the trust or guardianship, or upon distribution of assets from the trust or guardianship, the fiduciary may take a commission on corpus distributed, including accumulated income which has been invested by the fiduciary. The value of the corpus for the purpose of computing the commissions shall be the "presumptive value" or, at the option of the fiduciary, the value at the time of distribution, as defined in N.J.S. 3B:18-18. The amounts of the commissions to be taken are as follows:

a. If the distribution of corpus occurs within 5 years of the date when the corpus is received by the fiduciary, an amount equal to the annual commissions on corpus authorized pursuant to N.J.S. 3B:18-25, but not actually taken by the fiduciary, plus an amount equal to 2% of the value of the corpus distributed;

b. If distribution of the corpus occurs between 5 and 10 years of the date when the corpus is received by the fiduciary, an amount equal to the annual commissions on corpus authorized pursuant to N.J.S. 3B:18-25, but not actually received by the fiduciary, plus an amount equal to 11/2% of the value of the corpus distributed;

c. If the distribution of corpus occurs more than 10 years after the date the corpus is received by the fiduciary, an amount equal to the annual commissions on corpus authorized pursuant to N.J.S. 3B:18-25, but not actually received by the fiduciary, plus an amount equal to 1% of the value of the corpus distributed;and

d. If there are two or more fiduciaries, their corpus commissions shall be the same as for a single fiduciary plus an additional amount of one-fifth of the commissions for each additional fiduciary.

The following in the NJ Court Rule on Commissions and attorneys fees: RULE 4:88. COMMISSIONS AND ATTORNEY'S FEE 4:88-1. Affidavit of Accountant's Services

If the allowance of such commissions is within the discretion of the court, the applicant therefor shall, upon every application for commissions on corpus, at least 20 days prior to the day on which the account is settled, file an affidavit stating in detail the nature of the services rendered in administering the estate and specifying the amount of the commissions requested.

4:88-2. Commission Payments Before Settlement

Whether or not annual commissions are taken pursuant to N.J.S.A. 3B:18-17, a fiduciary may apply to the court to which he or she is accountable for an ex parte order supported by appropriate affidavits for payment to the fiduciary on account of commissions on corpus for services to date. Such order shall not be binding on the beneficiaries, and the payment so ordered shall be subject to approval and allowance or to disallowance by the court upon the settlement of the fiduciary's account.

4:88-3. Notice as to Apportionment of Commissions

The court shall not apportion commissions among cofiduciaries unless proof is made that five days' notice of the application for apportionment has been given to those of them who do not appear.

4:88-4. Affidavit of Attorney's Services

On every application for attorney's fees, the attorney shall file with the court at least 20 days prior to the day on which the account is settled an affidavit stating, in addition to the information required by R. 4:42-9(b), whether any part of the requested fee is to be paid to or shared with an attorney or firm of attorneys of another state or jurisdiction and if so, the amount to be paid or the manner in which the fee is to be shared shall be set forth and shall be supported by an accompanying affidavit of the foreign attorney or attorneys stating in detail the nature of the services rendered. The allowance shall be payable to the New Jersey attorney, and shall state what part, if any, of said allowance is to be paid to or shared with the foreign attorney or attorneys.

For Probate and Estate Administration matters, schedule a confidential consultation with Kenneth Vercammen, 732-572-0500