Yes. New York lets you name any eligible adult as executor, and that includes the lawyer who drafted your will. There is one New York rule you need to know first. Under Surrogate's Court Procedure Act (SCPA) § 2307-a, if the attorney who prepared your will, another attorney at that firm, or one of their employees serves as your executor, that person receives only one-half of the normal executor commissions. The only exception is a written acknowledgment you sign before the will is executed, witnessed by at least one person other than the attorney being named. The appointment is still valid without the acknowledgment. Only the pay is cut in half.
This page covers the whole topic in one place: what SCPA 2307-a requires, how commissions and legal fees are calculated, what the courts have said about attorney-drafters who name themselves, and what beneficiaries can do if they think an attorney-executor has overreached.
Written by Albert Goodwin, Esq., New York estates attorney. Last reviewed against the current text of SCPA §§ 2307, 2307-a and 2110: [insert review date].
The Core Rule: SCPA 2307-a and the Half-Commission Penalty
The New York Legislature adopted SCPA 2307-a so that clients would understand, before signing, what it costs to name their own lawyer as executor. The statute applies to wills executed on or after January 1, 1996. Before publishing or relying on any summary, check the current text on the New York State Senate's SCPA 2307-a page, because the statute has been amended since it was first enacted.
Who the statute covers
SCPA 2307-a applies when an attorney prepares a will that will be probated in New York and any of these people is named as executor:
- The drafting attorney: the lawyer who prepared the will.
- An affiliated attorney: a lawyer who, at the time the will is signed, is a partner, associate, or otherwise affiliated with the drafting attorney's firm.
- An employee: an employee of the drafting attorney or of an affiliated attorney, such as a paralegal or office manager.
The statute does not apply when you name a lawyer who had nothing to do with preparing your will. A family friend who is an attorney, named in a will drafted by a different firm, receives full commissions under the ordinary rules.
What you must be told before you sign
Before the will is executed, the testator must be informed in writing of four points:
- Subject to limited statutory exceptions, any person, including an attorney, is eligible to serve as executor.
- Unless the executor agrees otherwise, any executor, including an attorney, is entitled to statutory commissions.
- If the attorney-executor, or an affiliated attorney, also performs legal services for the estate, the firm is entitled to just and reasonable compensation for that legal work in addition to commissions.
- Without a signed acknowledgment, the drafting attorney, an affiliated attorney, or an employee who serves as executor receives one-half of the commissions otherwise payable.
How the acknowledgment must be signed
- Signed by the testator: you must sign it yourself.
- Witnessed: at least one witness other than the attorney-executor being named must sign. The attorney-designee cannot be the only witness.
- Location: the acknowledgment can appear in the will itself or in a separate writing. The statute provides suggested language for each format.
- Timing: the disclosure must come before the will is executed. A disclosure signed weeks after the will does not meet the statute.
The Surrogate's Court asks about this at probate. If the drafting attorney or a member of the firm is nominated as executor, the court will want to see whether a compliant acknowledgment exists before commissions are paid in full.
The Case Law: Weinstock and Putnam Address Different Problems
Two Court of Appeals decisions come up whenever a lawyer benefits from a will he or she drafted. They are often confused, and they answer different questions.
Matter of Weinstock: lawyers naming themselves executor
Matter of Weinstock, 40 N.Y.2d 1 (1976), is the leading New York case on attorney-drafters who arrange to be named executor. The attorneys in that case had recently met an elderly testator, drafted his new will, and named themselves as executors. The Court of Appeals agreed that letters testamentary should not issue to them, treating their conduct as overreaching by lawyers in a position of trust. The decision made clear that a lawyer may not use the drafting relationship to obtain an executorship and its commissions. The concerns in Weinstock are widely cited as the background to SCPA 2307-a.
Overreaching of the Weinstock kind can cost an attorney the appointment entirely. A signed 2307-a acknowledgment settles the commission question but does not shield an attorney who obtained the nomination through overreaching or undue influence.
Matter of Putnam: gifts to the lawyer who drafted the will
Matter of Putnam, 257 N.Y. 140 (1931), concerns bequests, not executor appointments. When a will leaves property to the attorney who drafted it, an inference of undue influence arises, and the attorney must explain the gift. The Surrogate's Court examines this at what practitioners call a Putnam hearing. If the gift is not satisfactorily explained, the court can refuse to give it effect.
How the three rules fit together
- SCPA 2307-a: controls how much an attorney-drafter executor is paid. Without a compliant acknowledgment, commissions are halved.
- Weinstock: addresses whether an overreaching attorney-drafter should serve as executor at all.
- Putnam: addresses whether a gift in the will to the attorney-drafter stands. It does not govern commissions.
The New York Rules of Professional Conduct (22 NYCRR Part 1200) apply alongside these rules. Rule 1.7 governs conflicts between the lawyer's own interests and the client's, and Rule 1.8(c) restricts lawyers from soliciting gifts from clients or preparing instruments that give the lawyer or a relative a substantial gift, with narrow exceptions for relatives. Neither rule bars a lawyer from serving as executor.
How Executor Commissions Are Calculated Under SCPA 2307
Under SCPA § 2307, executor commissions are a percentage of the property the executor receives and pays out, applied on a sliding scale. Real property that passes directly to the beneficiaries without being sold by the executor is generally left out of the commission base.
| Value received and paid out | Commission rate |
|---|---|
| First $100,000 | 5% |
| Next $200,000 | 4% |
| Next $700,000 | 3% |
| Next $4,000,000 | 2.5% |
| Above $5,000,000 | 2% |
Multiple executors: SCPA 2307(5)
Naming a co-executor is often suggested as a check on an attorney-executor. You should know the cost before you rely on it. Under SCPA 2307(5), when the gross estate is $300,000 or more, each executor can take a full commission, up to the amount payable to three executors. Between $100,000 and $300,000, up to two full commissions are allowed. Below $100,000, one commission is shared. The will can limit these amounts, and any executor can waive commissions. Without a limit or a waiver, a second executor can add a full extra commission to the estate's costs.
Worked Example: A $1.5 Million New York Estate
Assume a New York estate in which $1.5 million is received and paid out by the executor, the will says nothing about commissions, and no executor waives payment. The full commission on $1.5 million is:
- 5% of the first $100,000: $5,000
- 4% of the next $200,000: $8,000
- 3% of the next $700,000: $21,000
- 2.5% of the remaining $500,000: $12,500
- Total full commission: $46,500
| Scenario | Total executor commissions |
|---|---|
| Attorney-drafter as sole executor, signed and witnessed 2307-a acknowledgment | $46,500 |
| Attorney-drafter as sole executor, no acknowledgment | $23,250 |
| Attorney-drafter (with acknowledgment) and a family member as co-executors | $93,000 |
| Attorney-drafter (no acknowledgment) and a family member as co-executors | $69,750 |
| Family member as sole executor | $46,500, or less if waived |
Legal fees are separate. If the attorney-executor's firm also acts as estate counsel, the estate pays commissions and legal fees. For illustration only, if the Surrogate's Court fixed legal fees at $35,000, the estate in the first scenario would pay $81,500 in combined commissions and legal fees. Actual legal fees depend on the work the estate requires and are subject to court review, as described below.
Family members who serve as executor and are also beneficiaries often waive commissions, because commissions are taxable income while inheritances generally are not. A professional executor usually takes them.
How the Court Reviews the Attorney-Executor's Legal Fees
Under SCPA § 2110, the Surrogate's Court can fix and determine the fees of any attorney who renders services to an estate, on the application of the fiduciary or any interested person. Courts weigh the factors set out in Matter of Freeman, 34 N.Y.2d 1 (1974), and Matter of Potts, 213 App. Div. 59 (4th Dept. 1925), including the time and labor required, the difficulty of the questions, the skill needed, the amount involved and the benefit to the estate, the lawyer's experience and standing, and customary fees for similar work.
When the executor and estate counsel are the same person or firm, courts watch for double billing. Work that is executorial in nature, such as collecting bank accounts, paying routine bills, or corresponding with beneficiaries about ordinary matters, is paid through commissions. It should not appear again as legal fees. Billing records that blur the two roles are a common reason for fee reductions.
Common Mistakes in 2307-a Acknowledgments
In our practice, problems with attorney-executor disclosures tend to come from a short list of drafting and execution errors:
- Wrong witness: the attorney being named is the only person who signed as witness.
- Late signing: the acknowledgment is dated after the will, or is undated with no proof it came first.
- Missing elements: the form leaves out the half-commission warning or the statement about separate legal fees.
- Narrow coverage: the acknowledgment names one lawyer, but the will names a successor executor who is another attorney or employee at the firm.
- New will, old disclosure: the client signs a later will naming the same attorney, but the acknowledgment from the earlier will is the only one on file. The safest practice is a fresh acknowledgment for each new instrument.
- Lost original: a separate acknowledgment is not kept with the original will and cannot be produced at probate.
When Naming Your Attorney Makes Sense, and When It Does Not
Situations where an attorney-executor can help
- Divided families: any relative you name would be seen as taking sides, and a neutral professional can treat all beneficiaries equally.
- No suitable relative: no one close to you is willing and able to serve, or you are worried a relative would mismanage assets.
- Complex estates: the estate includes closely held businesses, out-of-state property, litigation, or New York or federal estate tax exposure.
Situations where it usually does not
- Modest estates: with one or two beneficiaries who get along, commissions plus legal fees can take a large share of a small estate.
- Continuity risk: if your lawyer is a solo practitioner or near retirement, the appointment may fail when it is needed. Name a successor executor.
- Distance from the court: an attorney who does not practice in the county Surrogate's Court where your will will be probated may need to hire local counsel, which adds cost.
Provisions You Can Put in the Will
If you decide to name your attorney, these provisions limit cost and add oversight:
| Provision | How it works | Tradeoff |
|---|---|---|
| Co-executor | A family member serves with the attorney so each can check the other. | Under SCPA 2307(5), each may take a full commission unless the will limits it or one waives. |
| Single-commission clause | The will directs that co-executors share one commission. | A professional co-executor may decline to serve on those terms. |
| Limited-duration appointment | The attorney serves until defined tasks are done, then a named successor takes over. | A change of fiduciary mid-administration adds paperwork. |
| Fee cap | Combined commissions and legal fees may not exceed a stated amount or percentage. | The cap must be workable or the nominee may renounce. |
| Reporting requirement | The executor gives beneficiaries periodic informal accountings. | Adds modest administrative cost. |
You can change your executor at any time while you have capacity by signing a new will or a codicil. If your new instrument again names the drafting attorney or the firm, sign a new 2307-a acknowledgment with it.
If You Are a Beneficiary and Suspect Overreaching
Beneficiaries of a New York estate have several tools when an attorney-executor appears to be taking too much or acting in the firm's interest rather than the estate's:
- Check the acknowledgment: ask whether a 2307-a acknowledgment was signed, when, and who witnessed it. If none exists, commissions are limited to one-half.
- Object to letters: before letters testamentary issue, an interested person can file objections under SCPA 709. See our page on letters testamentary.
- Demand an accounting: a beneficiary can petition to compel a judicial accounting under SCPA 2205 and file objections to commissions and fees. Our estate accounting lawyers handle these proceedings.
- Ask the court to fix legal fees: under SCPA 2110, any interested person can ask the Surrogate to review and fix the attorney's fees.
- Seek removal or surcharge: misconduct can support a petition to revoke letters under SCPA 711 and a claim for breach of fiduciary duty. See also our page on removing an estate fiduciary.
- Challenge the will: if the attorney-drafter also received a gift, a Putnam hearing may be available as part of a will contest.
For disputes that do not involve a lawyer-fiduciary, see how beneficiary and executor conflicts are resolved and whether beneficiaries are entitled to a copy of the will.
Frequently Asked Questions
Is it legal for my attorney to be the executor of my will in New York?
Yes. An attorney, including the one who drafted your will, can serve. If the drafting attorney, an affiliated attorney, or an employee serves, SCPA 2307-a limits commissions to one-half unless you signed a witnessed acknowledgment before executing the will.
Does the missing acknowledgment make the appointment invalid?
No. The appointment can still stand. The consequence is the reduction in commissions. A separate question is whether the attorney overreached in obtaining the nomination, which can lead to denial or revocation of letters.
Can the acknowledgment be part of the will?
Yes. It can appear in the will or in a separate writing. Either way, you must sign it, and at least one witness other than the attorney being named must sign.
Does SCPA 2307-a apply if my attorney did not draft my will?
No. It covers the drafting attorney, affiliated attorneys, and their employees. An unrelated attorney receives ordinary commissions under SCPA 2307.
Is Matter of Putnam the rule for attorney executors?
No. Putnam concerns gifts in a will to the drafting attorney and the inference of undue influence those gifts raise. Attorney-executor overreaching is addressed by Matter of Weinstock, and the commission consequence by SCPA 2307-a.
Does my attorney get paid twice?
The attorney can receive commissions as executor and legal fees as estate counsel, but not for the same work. The Surrogate's Court can review legal fees under SCPA 2110.
Speak With a New York Estates Attorney
If you are deciding whether to name a lawyer as executor, we can explain the commission and fee consequences and prepare a will and 2307-a acknowledgment that meet the statute. If you are a beneficiary questioning an attorney-executor's commissions or fees, we can review the will, the acknowledgment, and the accounting. For related planning, see our page on drafting a will in New York City. Call 212-233-1233 or email [email protected].
This page is general information about New York law and is not legal advice for any specific situation.
