Here in NYS, if two individuals are nominated to serve but only one is
available, the one can serve. Thus, at least under this rule, if
Secretary refuses to qualify as co-executor, or qualifies and later
resigns, Son will serve alone. Without commission. With all the
headaches. Perhaps Secretary will agree to assist Son in the tasks, for
regular compensation at Secretary's usual rate. Or Son can agree to seek
modification. But son's incentive may be low, to the extent that Son
receives under the will. Can Secretary petition alone for modification,
or is the problem rather one that requires consent of Son, regardless
whether he joins in the petition? Will Secretary continue in Son's employ?
-p-
Robby Hughes wrote:
> My gut tells me it is enforceable because the nominated executors can
> refuse to serve. However, if an administrator has to be appointed, then
> compensation can be paid in accordance with the state law. Maybe the
> secretary could find a way to be appointed administrator.
>
> Robert W. "Robby" Hughes, Jr.
> Attorney at Law
> 2415 West Park Place Blvd.
> Stone Mountain, GA 30087
> 770-469-8887
> 770-469-9099 fax
> [log in to unmask]
> www.hughespclaw.com
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> -----Original Message-----
> From: The Estate Planner's and Administrator's Discussion
> [mailto:[log in to unmask]] On Behalf Of LBenswanger
> Sent: Tuesday, October 27, 2009 5:50 PM
> To: [log in to unmask]
> Subject: [ABA-PTL] Executors fees
>
> The attorney drafted the will naming Son and his secretary (of whom
> Decedent Mom was very fond) as Co-executors. Attorney also inadvertently
> provided that no individual executor shall be compensated. Decedent had
> intended to see that Secretary was paid but did not want son to be paid.
>
> Son will not agree to petition Court for modification.
>
> Two questions:
>
> 1. Is the clause prohibiting compensation to an individual executor
> enforceable?
>
> 2. Assuming it is, is there a way to compensate secretary?
>
> This is a Pa administration and will require Court approval down the
> road as there are charitable beneficiaries.
>
>
>
> Lynn Benswanger, J.D., LL.M.
> Berwyn, PA
>
>
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