Administrator’s Commission in NSW: Legal Requirements

Introduction

An administrator who obtains letters of administration performs the same estate-management work as an executor, but without a Will that contains a remuneration clause. Section 86 of the Probate and Administration Act 1898 (NSW) (‘Probate and Administration Act’) gives the Supreme Court of New South Wales power to allow commission for an administrator’s pains and trouble.

This article explains how an administrator can seek commission, the process of passing accounts, and when beneficiary agreement can avoid a formal Court application.

Interactive Tool: See If You Can Claim Commission as an Estate Administrator in NSW

The Right to Claim Commission for Administrators

The Legal Basis for Remuneration

An administrator may apply for commission for the time and effort involved in administering an estate. 

Under Section 86 of the Probate and Administration Act, the Supreme Court of NSW may allow a commission or percentage from the estate’s assets for the administrator’s endeavour, if the amount is just and reasonable.

However, the commission is not automatic. Section 86 of the Probate and Administration Act also provides that no allowance may be made where an administrator, without good reason, fails to pass the accounts relating to the deceased estate as required by the applicable rules or a court order.

Differences Between an Executor and an Administrator

An executor is appointed by a Will and may have a Will-based entitlement to payment, such as a remuneration clause or a legacy connected with accepting the role. 

By contrast, an administrator obtains authority through a grant of letters of administration, including administration with the Will annexed, rather than through appointment under the Will.

An administrator may perform substantial work to protect assets, pay debts and distribute the estate, even though the Will does not provide a charging clause for that work, and wills and estate planning lawyers advising on deceased estate administration and administrator remuneration can help clarify the position. 

Section 74A of the Probate and Administration Act gives an administrator the same rights and liabilities, and makes the administrator accountable in the same way, as if the administrator were the executor of the deceased person.

Reaching an Agreement with Beneficiaries 

Obtaining Informed Consent from Beneficiaries

An administrator may resolve payment of commission through agreement with the affected beneficiaries, rather than applying to the Supreme Court of New South Wales. 

The agreement should cover a fair amount for the time and effort involved in the administration of the estate.

All affected beneficiaries, usually the residuary beneficiaries, must:

• be adults with legal capacity; and
• agree to the proposed payment.

If those beneficiaries consent to the commission, the administrator does not need formal Court approval before being paid from the estate.

The Impact of Beneficiary Agreement on Estate Costs

A beneficiary agreement can avoid the legal costs involved in an application to pass accounts and apply for commission. Those costs can be substantial and are normally paid from the estate, reducing the amount available for distribution to the residual beneficiaries.

A formal application also requires time for the administrator to prepare documents and for the Court to consider the request. This may delay the final distribution of the estate to the beneficiaries.

The Process of Passing Accounts for Administrators 

The Obligation to Keep & File Probate Accounts

An administrator must:

• protect the estate;
• collect the assets of the deceased;
• pay funeral and testamentary expenses and debts; and
• distribute the balance under the Will or intestacy laws.

The administrator must also keep probate accounts recording how the estate was managed and report to the beneficiaries.

In addition, under Section 85 of the Probate and Administration Act, verified accounts must be filed in specified circumstances, including where:

• the administrator is a creditor of the estate;
• the administrator is guardian of a minor beneficiary; or
• the estate substantially passes to a charity or public benevolent institution.

Applying to the Supreme Court to Pass Accounts

Proceedings to pass accounts must be commenced by filing a notice of motion in the parent proceedings under Part 78 Rule 76 of the Supreme Court Rules 1970 (NSW) (‘NSW Supreme Court Rules). The motion and supporting affidavit are prepared using UCPR Form 150, with the filing fee payable where formal verification and passing are sought.

Under Part 78 Rule 79 of the NSW Supreme Court Rules the administrator must publish a notice on the New South Wales Online Registry at least 14 days before commencing the proceedings.

The Registrar may require further evidence or documents and may pass the accounts if satisfied they are correct under Part 78 Rule 83 of the NSW Supreme Court Rules.

How the Supreme Court Determines Commissions

Assessing Pains and Trouble in Estate Administration

The Supreme Court may allow an administrator commission for the “pains and trouble” involved in administering a deceased estate under Section 86 of the Probate and Administration Act

The two terms are understood as follows:

• “Pains” refers to the responsibility, anxiety and worry associated with the administration of the estate.
• “Trouble” refers to the actual work completed by the administrator, such as dealing with estate assets, completing required tasks and arranging distribution.

Key Factors Influencing the Commission Award

Commission is discretionary and depends on the circumstances of each estate. The Registrar may consider:

• the size and complexity of the estate;
• the complexity of the Will or distribution scheme;
• the promptness, efficiency and diligence shown;
• the number and nature of routine and complex tasks;
• the amount of work completed and time spent;
• the level of responsibility involved;
• problems encountered during administration; and
• the number of administrators sharing the work.

An administrator seeking commission should provide evidence addressing the work performed, time spent and any difficulties encountered. The assessment focuses on the administration of the estate and the responsibilities carried by the administrator.

Standard Commission Rates and Percentages

Section 86 of the Probate and Administration Act does not guarantee a particular rate of commission. The Registrar may allow commission as a lump sum or percentage, with the following ranges serving only as a guide:

• 0.25% to 1.25% of the value of assets transferred in specie;
• 0.25% to 2.5% on income from capital realisations; and
• 1% to 5% on income collections.

The appropriate amount depends on the work performed, the responsibility involved and the circumstances of the deceased estate. These percentage ranges do not replace the Registrar’s assessment of what is just and reasonable.

Potential Reductions or Denials of Commission for Administrators

Disentitling Conduct & Breach of Trust

Commission is discretionary, so an administrator does not have a guaranteed entitlement to payment. As noted above, Section 86 of the Probate and Administration Act bars any allowance where an administrator, without good reason, fails to pass the accounts as required by the rules or a Court order.

The decision in Re Estate Gowing; Application for Executor’s Commission [2014] NSWSC247 (‘Re Estate Gowing‘) indicates that commission may also be denied where conduct involves neglect, breach of trust or disregard of fiduciary obligations. 

In addition, section 86A of the Probate and Administration Act empowers the NSW Supreme Court, of its own motion or on the application of any person interested in the estate, to review any commission or other amount charged or proposed to be charged respecting the estate. If the Court considers the amount excessive, it may reduce it, notwithstanding any provision in the will authorising the charge.

Deductions for Non-Professional Work Charged by Professionals

The Registrar checks professional bills submitted in the accounts and may disallow charges for work that is executorial rather than professional. This includes work that forms part of the administrator’s ordinary responsibility in administering the deceased estate.

If estate funds paid a solicitor or another professional for non-professional executorial work, the administrator may be ordered to reimburse the estate for those amounts. Furthermore, the Registrar may also moderate the amount properly payable from the estate for professional work undertaken.

Case Study on Costs & Delays in Estate Administration

Background of the Estate of David Patrick Roche Frost

In Estate of David Patrick Roche Frost [2025] NSWSC994 (‘Estate of Frost‘), a beneficiary applied for orders:

• requiring the executor to verify, file and pass the deceased estate’s accounts; and
• requiring the executor to personally pay the legal costs of the application on an indemnity basis, alleging delays in the estate administration.

The executor later consented to filing and verifying the accounts. The estate involved disputed information concerning shares, insurance and other financial matters, with some delay arising from both the executor’s conduct and the beneficiary’s responses.

The Court Ruling on Indemnity Costs & Administrator Conduct

The Court found that the executor’s overall management of the estate was reasonable and attentive, despite some delays. The delays were not sufficiently serious or improper to justify requiring the executor to personally pay the beneficiary’s legal costs.

Applying the negative test, the Court considered whether the executor’s expenses were incurred unreasonably or improperly. The Court ordered that each party bear their costs, while also referring the accounts to the Registrar for certification under Part 78 Rule 84 of the NSW Supreme Court Rules.

Conclusion

An administrator who obtains letters of administration may seek commission under Section 86 of the Probate and Administration Act for the pains and trouble involved in estate administration. The claim remains discretionary, and accurate accounts, proper conduct and informed agreement from adult beneficiaries can affect whether a Court application is needed and what amount may be allowed.

If an estate administration involves an unresolved commission claim, contact LawBridge’s wills and estate planning lawyers. LawBridge can provide clear guidance on beneficiary consent, accounts and the steps required to pursue payment while protecting the estate’s remaining assets.

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