Can an Executor Be Paid in Victoria?

Are Executors Entitled to Payment?

The general position is that an executor acts gratuitously. The role is a fiduciary one — an executor must act in the best interests of the estate and the beneficiaries — and the law has historically been cautious about allowing fiduciaries to profit from their office. That starting point is important. An executor who simply pays themselves a fee for "their time" out of the estate, without authority, is acting outside the proper scope of the role and may be required to repay the funds.

That does not mean an executor can never be paid. The law recognises two quite different concepts:

• Reimbursement of proper out-of-pocket expenses — which simply restores the executor to the position they would have been in if they had not paid the expense personally; and
• Executorial remuneration or commission — a payment to the executor for their pains and trouble in administering the estate, authorised by a valid remuneration clause, informed consent from each interested beneficiary under section 65C, or an order of the Supreme Court.

Many executors misunderstand this distinction. They assume that, because they have spent significant time on the estate, they can simply pay themselves an hourly rate from the estate funds. That is not the law in Victoria. The scope of the role is set out in detail in our guide to executor duties; the key point here is that personal payment for time is a separate question from reimbursement and is not available without proper authority.

Can an Executor Recover Expenses?

Proper expenses may be reimbursed, but entitlement can be disputed and section 65A permits the Court to reduce or order repayment of excessive amounts. Examples may include:

• Reasonable funeral and burial or cremation costs properly payable from the estate, assessed in context rather than by a blanket rule about every associated event;
• Probate expenses — Supreme Court filing fees, advertising costs and the cost of obtaining death certificates;
• Legal costs — including the cost of preparing the probate application, advice on the executor's duties and any litigation properly defended or brought on behalf of the estate;
• Accounting costs — including date of death and estate tax returns, BAS, and advice on capital gains and income tax issues;
• Estate administration expenses — such as valuations, insurance, maintenance and security of real estate, removal and storage of chattels, bank and transfer fees, and reasonable travel directly related to estate work.

Reimbursement is not the same as personal payment. The executor is simply being repaid for money they have already spent on the estate's behalf. Receipts, invoices and a clear running ledger are essential. Where reimbursement is unusually large, or where there is any possibility of overlap with commission, the executor should obtain advice before drawing the funds.

What Is Executor Commission?

Executor's commission is a payment from the estate to the executor in recognition of the "pains and trouble" of administering the estate. It exists because the law recognises that some estates impose a real burden on the executor — long hours, difficult assets, contested claims, ongoing tax compliance — and that it would be unfair to expect the executor to bear that burden without recognition.

In Victoria, the statutory basis for commission is section 65 of the Administration and Probate Act 1958 (Vic). It allows the Court to allow an executor "such commission or percentage", not exceeding 5%, as is just and reasonable for their pains and trouble. Five per cent is the statutory ceiling, not a default, starting point or entitlement. Because commission reduces what the beneficiaries receive, the Court takes its supervisory role seriously. Commission is not a fee for service in the commercial sense; it is a discretionary allowance, subject to oversight.

When Can an Executor Claim Commission?

Commission is most appropriate where the executor's work has been significant and goes beyond a simple administration. Factors that point towards commission being available include:

• Significant work performed — sustained effort over many months, particularly where the executor has personally taken on tasks that might otherwise have been outsourced;
• Complexity of the estate — such as business interests, multiple properties, overseas assets, contested claims, tax disputes or vulnerable beneficiaries;
• Time and responsibility involved — including the duration of the administration, the decisions required of the executor and the level of skill and care needed;
• Beneficiary consent — whether each interested beneficiary gives informed consent within section 65C after the required section 65D disclosure; and
• Court approval — where no valid Will authority or effective section 65C consent supports the proposed payment, the executor must seek an order from the Supreme Court.

It is not possible to say in advance that an executor is "entitled to" a specific amount of commission. Every estate is different, and the Court is not bound by any fixed entitlement.

How Is Executor Commission Calculated?

There is no automatic percentage for executor commission in Victoria. Section 65's 5% maximum is a ceiling only. The just and reasonable amount remains case-specific. The Court considers factors, including:

• the gross and net value of the estate;
• the nature and complexity of the assets and liabilities;
• the work actually performed by the executor, as distinct from work paid for separately (for example, legal or accounting work);
• the time and responsibility involved;
• the skill required and the results achieved for beneficiaries; and
• any difficulties, disputes or unusual features of the administration.

The amount allowed varies widely. In a straightforward estate, the Court may allow a modest amount or none at all. In a complex estate with substantial executor effort, a more significant allowance may be justified. What the Court will not do is treat commission as the equivalent of a professional adviser's fee scale. Every estate depends on its own circumstances.

Can Beneficiaries Object to Executor Commission?

Yes. Because commission reduces what the beneficiaries receive, they have a direct interest in any claim. Where the section 65C consent route is used, informed consent is required from each interested beneficiary. Section 3 defines an interested beneficiary as a beneficiary whose entitlement to part of the residuary estate may be affected by the deduction of executor remuneration. Section 65D requires prompt, plain-language disclosure of the basis for payment, calculation method, estimated value and right to Court review, plus notice of a likely substantial change. Under section 65D(3), the information must be in English or another language where the beneficiary lacks sufficient English, and given verbally if the beneficiary is illiterate. Reasonable efforts must also be made to inform the representatives identified in section 65D(4): the parent or guardian of an interested minor, or the guardian, administrator or attorney of an interested adult without legal or decision-making capacity. Under section 65D(5), an executor who contravenes the section is not entitled to commission, a percentage of estate assets or fees. Section 65D does not apply to a trustee-company executor.

Where consent is not given or cannot be given and no valid Will authority supports payment, the executor must apply to the Supreme Court. A minor or adult without relevant capacity is not simply treated as having consented through the disclosure process. The Court will normally expect to see:

• detailed estate accounts, showing receipts, payments and the proposed distribution;
• a clear statement of the work performed by the executor, the time spent and any records kept;
• the position of each beneficiary on the proposed commission; and
• an explanation of any legal or accounting fees separately paid, so the Court can avoid double recovery.

Transparency is the executor's best friend in any commission application. Beneficiaries who feel they have been kept informed are far more likely to agree to a reasonable commission than beneficiaries who feel the executor has been opaque.

What If There Is More Than One Executor?

Many Victorian Wills appoint joint executors. Where two or more executors share the work, commission may still be available, but it must be considered in the round. The Court will look at the total commission, not what each executor would receive in isolation. In practice that usually means:

• joint executors should agree, in advance if possible, how any commission would be shared between them — for example, equally, or in proportion to the work done;
• the overall amount must still be just and reasonable having regard to the estate as a whole; and
• where one executor has effectively carried the administration, the allocation should reflect that.

Where the relationship between joint executors has broken down to the point that the administration is suffering, commission may not be the only issue. In serious cases beneficiaries or a co-executor may consider removing an executor, although that is a remedy of last resort. Where one named executor will not act at all, the position is considered in our guide on what happens when an executor refuses to act.

Can a Professional Executor Be Paid?

Professional executors — typically solicitors, accountants or trustee companies — require careful separation of legal gateways. Licensed trustee companies are subject to the Corporations Act 2001 (Cth) Chapter 5D regime. Section 65(2) separately caps any Court allowance for a licensed trustee company at the amount it may charge under that regime, while the definition of trustee company and the exceptions in sections 65C and 65D also include State Trustees. For a Will executed on or after 1 November 2017, a remuneration clause is void under sections 49A and 56 of the Wills Act 1997 (Vic), and payment under it is unavailable under section 65B, unless the testator gave written informed consent before execution. Earlier Wills and deaths require advice under the transitional rules explained below.

A remuneration or charging clause concerns payment for executorial services; it is not blanket authority to charge ordinary executorial work at professional rates. It is important to distinguish:

• Professional-service fees — for genuine legal, accounting or other professional work properly done in the administration (such as the probate application, advice on contested claims and conveyancing of estate property), where the estate is properly liable for those distinct professional services under the applicable separate retainer or other authority and the applicable costs rules or professional-fee law. A Will remuneration clause is not universally required for these distinct services; and
• Executor commission — for the non-legal work of administering the estate, which still falls to be considered as commission under the ordinary principles, even if the executor is a professional.

Section 65E is not an election to charge specialist professional fees. If a Will provides for commission, an executor may instead elect to charge fees for executorial services only if those fees are less than the commission entitlement, are calculated at a rate that excludes the executor's specialist professional skills and are distinguished from fees charged for professional services. The section does not authorise double recovery or a general professional hourly rate for executorial work. A gift to an executor does not automatically bar commission; whether it was intended in lieu of remuneration is a question of construing the Will and evidence.

Which Estates Do the 2017 Reforms Apply To?

Sections 65A–65E were inserted by Part 3 of the Administration and Probate and Other Acts Amendment (Succession and Related Matters) Act 2017 (Vic). They commenced on 1 November 2017. The transitional rule in section 106(1) applies the amendments generally to the estate of a person who died on or after that date. Section 106(2) then imposes a narrower rule for sections 65B, 65C and 65D: those sections apply only to a Will executed on or after 1 November 2017. Section 56 of the Wills Act 1997 (Vic) likewise provides that section 49A applies only to a Will executed on or after its commencement. The statutory triggers are therefore the date of death and, for sections 49A and 65B–65D, the Will's execution date—not the date of the grant, disclosure, payment or Court application.

For an estate of a person who died before 1 November 2017, the new sections 65A–65E do not apply. If the person died on or after that date but the Will was executed earlier, sections 65A and 65E may apply under the general date-of-death rule, but sections 65B–65D and Wills Act section 49A do not apply retrospectively to that earlier Will. That does not automatically validate every clause or payment: the Will's construction, the law otherwise applicable and the Court's existing supervisory jurisdiction still require separate analysis.

The exceptions are provision-specific. Section 65A does not apply to State Trustees. Sections 65C and 65D do not apply to an executor that is a trustee company, a defined term encompassing a licensed trustee company and State Trustees. Section 65B contains no equivalent trustee-company exception. Separately, section 65(2) limits Court-awarded commission for a licensed trustee company by reference to what it may charge under Chapter 5D of the Corporations Act 2001 (Cth). Section 65E is governed by the general date-of-death transition in section 106(1) and allows only its confined executorial-fees election. These exceptions do not convert one payment category into another, authorise specialist professional fees under section 65E or permit double recovery.

Practical Tips for Executors

A Court claim follows Order 10 of the Supreme Court (Administration and Probate) Rules 2023. Rule 10.03 requires a verified administration account before a commission application. The application then uses a Form 3-10A summons and Form 3-10B supporting affidavit. The Probate Office's current guidance and forms should be checked when filing.

Executors who think they may eventually seek commission, or significant reimbursement, can put themselves in a much stronger position by adopting a few simple habits from the outset:

1. Keep records — open a dedicated estate file (paper or digital) and keep every relevant document, valuation, statement and piece of correspondence in one place.
2. Record time spent — a simple log of dates, tasks and hours is invaluable evidence later, particularly in a contested commission application.
3. Retain invoices — every expense paid on behalf of the estate should be supported by an invoice or receipt and reflected in the running ledger.
4. Maintain transparency — keep beneficiaries reasonably informed of progress and significant decisions so they can understand any proposed remuneration and raise questions promptly.
5. Avoid drawing payment without authority — never pay yourself commission without authority under a valid Will clause, effective informed consent where section 65C applies, or a Court order.
6. Seek advice early — particularly before drawing any commission, entering into a deed of family arrangement, or finalising the estate administration.

Conclusion

An executor in Victoria is not automatically entitled to be paid for their time. The default position is that the role is gratuitous. Reasonable expenses properly incurred in administering the estate are recoverable, and in many cases the executor may also be entitled to commission for the pains and trouble of the administration — but payment requires authority under a valid remuneration clause, informed consent from each interested beneficiary where section 65C applies, or an order of the Supreme Court. Court-awarded commission is subject to the 5% statutory ceiling, not a standard rate.

Because commission reduces what beneficiaries receive, the safest course for any executor is to keep careful records, communicate openly and obtain advice before drawing any payment from the estate. Doing so protects the executor personally, reduces the risk of dispute and preserves the relationship with the beneficiaries — which is, in the end, the best outcome for the estate as a whole.

Frequently Asked Questions