Who gets paid what? Executor, Administrator, Trustee and Fiducairy Commissions in NJ

If you have ever been a fiduciary (executor, trustee, administrator, guardian, attorney-in-fact) you know that being a fiduciary becomes your new part time job.  There is a lot of work involved - finding assets, consolidating and investing assets, paying debts, maintaining property, distributing property, paying taxes.  On top of the actual work, you are dealing with attorneys, accountants, financial planners, the beneficiaries (who can easily be the most demanding of all) - oh, and your own grief and loss.

Unlike other things that you do for family, being a fiduciary is a job where you can get paid. New Jersey statutes provide pay scales for fiduciaries, all of which are subject to increase or decrease by court review.  Be aware however that any compensation you receive as a fiduciary must be included in your taxable income in the year that it is paid.  On the plus side, any commission paid to you is a tax deduction against any estate tax or income earned by the estate or trust..

I must give a shout out to my colleague, Don Vanerelli, Esq., who created an an excellent paper on "Computing Fiduciary Commissions / Compensation", which I just found and referred to in doing some trust commission research.  Don's paper is the inspiration and source of this post.

Executors and Administrators (NJSA 3B:18-12 through 3B:18-17):

Income (each year):

6% of income earned by the estate each year

Principal/Corpus (one time):

5% on the first $200,000;
3.5% on amounts between $200,000 and $1,000,000; and
2% on excess over $1,000,000.

If there are Co-Executors or Co-Administrators, an additional 1% of the Principal/Corpus may be taken as an additional commission.

If the estate is lengthy, an additional annual Principal/Corpus commission of 1/5 of 1% of the value of the Principal/Corpus may be taken.

Trustees, Guardians and Conservators (NJSA 3B:18-23 through 3B:18-27 ):

Income:

6% of income earned by the trust or assets under guardianship/conservatorship each year.

Principal/Corpus (each year):

$5.00 per thousand dollars of corpus on the first $400,000; and
$3.00 per thousand dollars of corpus in excess of $400,000.

There is an annual minimum of $100, and banks are entitled to "what is reasonable".

If there are Co-Trustees or Co-Guardians, an additional 1/5 commission is granted for the additional fiduciaries.

Termination of the Trust or Guardianship:

On the termination of the trust or guardianship or conservatorship, additional commissions may be taken:

If the corpus distribution occurs within 5 years of its receipt by the fiduciary, an amount equal to the annual corpus commission allowable but not actually taken, plus 2% of the corpus distributed;

If the corpus distribution occurs between 5 and 10 years of its receipt by the fiduciary, an amount equal to the annual corpus commission allowable but not actually taken, plus 1 1/2% of the corpus distributed;

If the corpus distribution occurs more than 10 years of its receipt by the fiduciary, an amount equal to the annual corpus commission allowable but not actually taken, plus 1% of the corpus distributed.

If there are Co-Trustees or Co-Guardians, an additional 1/5 termination commission is granted for the additional fiduciaries.

Agents under a Power of Attorney (NJSA 46:2B-8.12):

You need to apply to the court for compensation.

Image: David Castillo Dominici / FreeDigitalPhotos.net

65% of Americans Don't Have a Will - Staggering as 100% will die someday

Why don't people create a Will?  Reasons I have heard range from I don't have enough money to worry about it, I trust xyz person to take care of it, it is too complicated or expensive, to people who sincerely believe that if they make a Will they may die.  

Apparently, all these reasons and more are very strong as  Forbes.com reports that 65% of Americans do not have a Will. The article, brought to my attention by Michael Rinne, outlines some of the reasons people give for not making a Will.

I understand all the reasons why for many people making a Will is not a priority.  There are oodles of things not a priority in my life.

However, for parents of minor children, the only place to name Guardians for your children upon your death in is your Will.  Whatever reason you have for not thinking you need a Will, it is superseded by your need as a parent to provide for who will care for your children in the event of your death.  

To make it easy, go to www.legalzoom.com and have a Will prepared on-line if seeking professional services is not a priority at this time.  I have blogged before on the pros and cons of computerized Wills, and an article on the subject is being talked about on Twitter today, but in the case of naming care for minor children, something is definitely better than nothing.

What are your thoughts on why 65% of Americans don't have a Will?

Who is to Say You Can't Make a Gift? Undue Influence Over Lifetime Transfers

If a person has a Will and dies, and a beneficiary doesn't like the terms, one grounds for challenging the Will is that the testator (person making the Will) was subject to undue influence when he made it. An example would be a person with 4 children leaving 100% of his estate to one child, who the person relies on.  This doesn't mean that a person can't leave there assets to whomever they please, just that there are situations where people take advantage of a person's fragility to have assets funneled to them.

What happens when a person makes a gift during his lifetime and another party challenges that gift before the person dies?  The recently issued opinion in  Estate of Claudia L. Cohen v. Robert Cohen, Law Div. — Bergen Co. (Koblitz, P.J. Ch.) indicates that under New Jersey case law, the only people who have legal standing to bring a legal action to undue a lifetime gift are:

  • The Grantor (person who made the gift)
  • The Guardian of the Grantor, so long as the Grantor is still alive
  • The Executor of the Grantor (or Administrator of the estate if there was no Will), if the Grantor has died

So what if you have a situation where your mom is living with your sister, and she is transferring assets to your sister, and you think mom doesn't really understand what she is doing, or is scared to say 'no' to your sister?  The answer might be to seek a Guardianship over mom if she is no longer competent and the Guardian can then pursue the gifts made under undue influence.  

Guardians for Children - A Good Result from the Michael Jackson Circus

Over the past several weeks I have gotten a number of calls that started this way "I don't need an estate plan, but I need to name Guardians for my kids - the Michael Jackson situation got me thinking."

Unfortunately, the term "estate planning" is off-putting; many people think they need to have loads of money to have an "estate plan". All that you need to benefit from an estate plan is something that you want to protect - that could be your business, your money from taxes, your charitable goals, or your children.

A basic estate plan consists of a Will (who gets my stuff when I die and how do they get it), a Financial Power of Attorney (who can make financial decisions for me if I can't), and a Health Care Power of Attorney (who can make medical decisions for me if I can't). 

A Will is the only place you can name Guardians for your minor children.  The ONLY place.  So, everyone with kids needs an "estate plan" because they need a Will.  

Think about all the decisions you make for your children every day.  Shouldn't you take action to determine who would make those decisions if you can't? Who would communicate your values to your children?  Who would make sure they have the life experiences when they are young that are important to you?

I'm not saying its an easy decision in all instances - family situations are difficult.  I am saying you should never leave it up to a judge you never met and who doesn't know you or children to figure our who the person who raises them should be.