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

KENNETH VERCAMMEN, ESQ.

RECENT SPEAKING ENGAGEMENTS ON WILLS, ELDER LAW, AND PROBATE

Edison Adult School -Wills, Elder Law & Probate- 2004, 2003, 2002 [inc Edison TV], 2001, 2000,1999,1998,1997 Old Bridge AARP 2002; Guardian Angeles/ Edison 2002; St. Cecilia/ Woodbridge Seniors 2002; Temple Beth Or 2002; Hall's Corner/ East Brunswick 2002; -Linden AARP 2002 -Woodbridge Adult School -Wills and Estate Administration -2001, 2000,1999,1998,1997,1996 Woodbridge Housing 2001; Metuchen Seniors & Metuchen TV 2001; Frigidare/ Local 401 Edison 2001; Chelsea/ East Brunswick 2001, Village Court/ Edison 2001; Old Bridge Rotary 2001; Sacred Heart/ South Amboy 2001; Livingston Manor/ New Brunswick 2001; Sunrise East Brunswick 2001; Strawberry Hill/ Woodbridge 2001; -Wills and Elder Law - Metuchen Adult School 1999,1997,1996,1995,1994,1993 -Clara Barton Senior Citizens- Wills & Elder Law-Edison 2002, 1995 -AARP Participating Attorney in Legal Plan for NJ AARP members -Senior Legal Points University of Medicine & Dentistry UMDNJ & St. Peter's-2000, 1999,1998 -East Brunswick AARP Wills 2001 -Iselin/ Woodbridge AARP Wills 2000 -Metuchen Reformed Church; Franklin/ Somerset/ Quailbrook Seniors 2001 -North Brunswick Senior Day 2001 -Wills, Elder Law and Probate-South Brunswick Adult School & Channel 28 TV 1999, 1997,1993 -Wills and Estate Planning-Old Bridge Adult School 1998,1997,1995 -Senior Citizen Law-Perth Amboy YMHA 1995 -Wills, Living Wills and Probate-Spotswood Community School 1995,1994,1993 -Wills and Probate-Sayreville Adult School 1997, 1996,1995,1994 -Living Wills-New Jersey State Bar Foundation and St. Demetrius, Carteret 1994 -Wills and Estate Planning-Edison Elks and Senior Citizens January 1994 -"Legal Questions Clinic" Metuchen Adult School March 1995,1994,1993 -Estate Planning to Protect Families-Metuchen Chamber of Commerce April 1993 -Living Wills-Dean Witter and Nordstroms, Menlo Park Mall October 1992; Trusts and Living Wills-Dean Witter, Metro Park, June 1992; Estate Planning-North Brunswick Republican Club May 1992; -Wills and Power of Attorney 1991 Edison Democratic Association Other Seminars -Automobile Insurance - Middlesex County College - 1990 -Criminal & Juvenile Courts Piscataway Vo Tech - 1990 Defending Speeding Cases - New Jersey State Bar Association/NJSBA - 1989 Self Defense and Home Protection - Speaker - New Brunswick Crime Watch - 1989

New Jersey State Bar Association -General Practice Section-Board of Directors 1995- Present

ADJUNCT PROFESSOR Middlesex County College Edison, NJ February, 2001-April, 2001; Jan. 1990-May, 1991






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Kenneth Vercammen is the Managing Attorney at Kenneth Vercammen & Associates in Edison, NJ. He is a New Jersey trial attorney has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appears in Courts throughout New Jersey each week for litigation and contested Probate hearings.

Mr. Vercammen has published over 125 legal articles in national and New Jersey publications on elder law, probate and litigation topics. He is a highly regarded lecturer on litigation issues for the American Bar Association, NJ ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published in noted publications included New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer.

He is chair of the Elder Law Committee of the American Bar Association General Practice Division. He is also Editor of the ABA Estate Planning Probate Committee Newsletter and also the Criminal Law Committee newsletter. Mr. Vercammen is a recipient of the NJSBA- YLD Service to the Bar Award. And past Winner "General Practice Attorney of the Year" from the NJ State Bar Association. He is a 22 year active member of the American Bar Association. He is also a member of the ABA Real Property, Probate & Trust Section.

He established the NJlaws website www.njlaws.com which includes many articles on Elder Law. Mr. Vercammen received his B.S., cum laude, from the University of Scranton and his J.D. from Widener/Delaware Law School, where he was the Case Note Editor of the Delaware Law Forum, a member of the Law Review and the winner of the Delaware Trial Competition.

RECENT SPEAKING ENGAGEMENTS ON WILLS, ELDER LAW, AND PROBATE

Edison Adult School -Wills, Elder Law & Probate- 2007, 2006, 2005, 2004, 2003, 2002 [inc Edison TV], 2001, 2000,1999,1998,1997
Nuts & Bolts of Elder Law - NJ Institute for Continuing Legal Education/ NJ State Bar ICLE/NJSBA 2007, 2006, 2005, 2004, 2003, 2002, 2000, 1999, 1996
Elder Law and Estate Planning- American Bar Association Miami 2007
Elder Law Practice, New Ethical Ideas to Improve Your Practice by Giving Clients What They Want and Need American Bar Association Hawaii 2006
South Plainfield Seniors- New Probate Law 2005, East Brunswick Seniors- New Probate Law 2005
Old Bridge AARP 2002; Guardian Angeles/ Edison 2002; St. Cecilia/ Woodbridge Seniors 2002;
East Brunswick/ Hall's Corner 2002;
Linden AARP 2002
Woodbridge Adult School -Wills and Estate Administration -2001, 2000, 1999, 1998, 1997, 1996
Woodbridge Housing 2001; Metuchen Seniors & Metuchen TV 2001; Frigidare/ Local 401 Edison 2001; Chelsea/ East Brunswick 2001, Village Court/ Edison 2001; Old Bridge Rotary 2001; Sacred Heart/ South Amboy 2001; Livingston Manor/ New Brunswick 2001; Sunrise East Brunswick 2001; Strawberry Hill/ Woodbridge 2001;
Wills and Elder Law - Metuchen Adult School 1999,1997,1996,1995,1994,1993
Clara Barton Senior Citizens- Wills & Elder Law-Edison 2002, 1995
AARP Participating Attorney in Legal Plan for NJ AARP members 1999-2005
Senior Legal Points University of Medicine & Dentistry UMDNJ & St. Peter's-2000, 1999,1998
East Brunswick AARP Wills 2001; -Iselin/ Woodbridge AARP Wills 2000
Metuchen Reformed Church; Franklin/ Somerset/ Quailbrook Seniors 2001
North Brunswick Senior Day 2001
Wills, Elder Law and Probate-South Brunswick Adult School & Channel 28 TV 1999, 1997,1993
Wills and Estate Planning-Old Bridge Adult School 1998,1997,1995
Senior Citizen Law-Perth Amboy YMHA 1995; Temple Beth Or 2002;
Wills, Living Wills and Probate-Spotswood Community School 1995,1994,1993
Wills and Probate-Sayreville Adult School 1997, 1996,1995,1994
Living Wills-New Jersey State Bar Foundation and St. Demetrius, Carteret 1994
Wills and Estate Planning-Edison Elks and Senior Citizens January 1994
"Legal Questions Clinic" Metuchen Adult School March 1995,1994,1993
Estate Planning to Protect Families-Metuchen Chamber of Commerce April 1993
BUSINESS AND AMERICAN BAR ASSOCIATION SPEAKING ENGAGEMENTS:
Improving Your Elder Law & Estate Practice San Francisco, CA 2007
Elder Law and Estate Planning- ABA Miami 2007
Elder Law Practice, New Ethical Ideas to Improve Your Practice by Giving Clients What They Want and Need ABA Hawaii 2006
Marketing Success Stories ABA Toronto 1998
Opening a Business-Sayreville Adult School 1997,1996,1995
Olympians of Marketing- ABA Annual Meeting-Orlando, Florida 1996

Contact the Law Office of
Kenneth Vercammen & Associates, P.C.
at 732-572-0500
for an appointment.

The Law Office cannot provide legal advice or answer legal questions over the phone or by email. Please call the Law office and schedule a confidential "in office" consultation.