SCPA 2307-a: The Attorney-Executor Disclosure Requirement

When a New York attorney drafts a will and is also named in that will as the executor, the law treats the arrangement with suspicion. The attorney stands to earn two separate streams of compensation from the same estate: statutory executor commissions and legal fees for the estate's legal work. To make sure the client understood this before signing the will, the Legislature enacted Surrogate's Court Procedure Act (SCPA) 2307-a. The statute requires the drafting attorney to give the testator a specific written disclosure and to obtain the testator's signed acknowledgment of that disclosure. If the acknowledgment is missing or defective, the attorney is not removed from office and is not denied legal fees — but the executor commissions are cut in half.

This page explains what SCPA 2307-a requires, who it covers, exactly how much money is at stake, how compliance is determined in Surrogate's Court, and the mistakes that most often cost attorney-executors half their commissions — or hand beneficiaries a valuable objection.

The Problem SCPA 2307-a Solves

Nothing in New York law prohibits an attorney from serving as executor of a will the attorney drafted. Any eligible adult can serve. The concern is informed consent. Many clients assume that naming their lawyer as executor is simply part of the estate plan, without realizing that:

• They could have named a spouse, child, friend, or anyone else instead — no legal training is required to be an executor;
• Whoever serves as executor earns statutory commissions under SCPA 2307, which on a moderately sized estate can amount to tens of thousands of dollars; and
• An attorney who serves as executor and also performs the estate's legal work is generally entitled to both the commissions and reasonable legal fees.

SCPA 2307-a does not forbid the double compensation. It requires that the testator be told about it, in writing, and sign an acknowledgment confirming the disclosure was made.

What the Statute Requires: The Three Disclosures

Under SCPA 2307-a(1), when an attorney prepares a will and the attorney, an employee of the attorney, or an attorney affiliated with the drafter is named as an executor in that will, the testator must be informed of three things:

1. Anyone can serve. Subject to limited statutory exceptions (such as ineligibility under SCPA 707), any person — not only an attorney — is eligible to serve as executor.
2. Executors earn commissions. Absent an agreement to the contrary, any person who serves as executor is entitled to statutory commissions under SCPA 2307.
3. An attorney-executor may collect both commissions and legal fees. If the attorney (or an affiliated attorney) serves as executor and also renders legal services in connection with the executor's duties, the attorney is entitled to executor commissions and reasonable compensation for the legal services.

The Written Acknowledgment

Disclosure alone is not enough. The testator must sign a written acknowledgment of disclosure, and that document must satisfy several formal requirements:

• It must be a writing signed by the testator;
• It must be witnessed by at least one person other than the executor-designee — the attorney named as executor cannot be the sole witness to the acknowledgment;
• It may be executed before, at the same time as, or after the execution of the will. A separate acknowledgment signed months or years after the will was executed still counts, as long as the testator signed it during life; and
• It must be filed in the probate proceeding along with the will.

The statute itself sets out model acknowledgment forms — one designed for an acknowledgment executed together with the will under the attorney's supervision, and one for an acknowledgment executed at another time. A written acknowledgment that conforms or substantially conforms to one of the statutory models is deemed compliant. The Legislature added the "substantially conforms" language by amendment in 2004, after a series of cases in which acknowledgments were challenged over minor wording deviations. Courts now look at whether the document actually conveys the substance of the three required disclosures, not whether it copies the model verbatim.

Who Counts as the "Attorney" — the Affiliation Rules

SCPA 2307-a cannot be avoided by naming a law partner or associate as executor instead of the drafter. The statute reaches:

• The attorney who prepared the will;
• An employee of that attorney, or an attorney who employs the drafter; and
• An attorney affiliated with the drafter — including members and associates of the same law firm, and counsel relationships.

If the will was drafted by one lawyer at a firm and names another lawyer at the same firm as executor, the disclosure and acknowledgment requirements apply with full force.

The Consequence of Noncompliance: Half Commissions

The remedy is precise and automatic. If the required disclosure and acknowledgment are not established, the attorney-executor's commissions are limited to one-half the statutory commissions the executor would otherwise receive under SCPA 2307. Noncompliance does not:

• Disqualify the attorney from serving as executor;
• Invalidate the will or the appointment; or
• Reduce or eliminate the attorney's separate legal fees for legal work performed for the estate (those fees remain subject to review under SCPA 2110, discussed below).

The SCPA 2307 Commission Schedule

To understand what "half commissions" means in dollars, start with the full statutory rates. SCPA 2307 sets executor commissions on a sliding scale based on the value of property received and paid out:

Worked Example 1: $1,000,000 Probate Estate

Suppose an attorney drafted the will, is named sole executor, and the commissionable estate is $1,000,000. Full SCPA 2307 commissions would be:

• 5% of the first $100,000 = $5,000
• 4% of the next $200,000 = $8,000
• 3% of the next $700,000 = $21,000
• Total full commission: $34,000

If no valid SCPA 2307-a acknowledgment was executed, the attorney-executor's commission is capped at one-half: $17,000. The missing signature on a one-page disclosure form costs the attorney $17,000 — and saves the beneficiaries the same amount.

Worked Example 2: $600,000 Estate

• 5% of $100,000 = $5,000
• 4% of $200,000 = $8,000
• 3% of $300,000 = $9,000
• Full commission: $22,000; reduced commission without compliance: $11,000

Note that the reduction applies to the attorney-executor's commission. If the attorney serves alongside a non-attorney co-executor, the co-executor's commission is computed under the ordinary multiple-commission rules of SCPA 2307 and is not reduced by the attorney's noncompliance.

How Compliance Is Determined in Surrogate's Court

Step 1: Filing with the Probate Petition

When the attorney-executor files the probate petition, the signed acknowledgment of disclosure should be filed with it. The official probate petition form asks whether the nominated executor is the attorney-draftsperson, an affiliated attorney, or an employee, and most Surrogate's Courts will not issue letters testamentary to an attorney-drafter without either a filed acknowledgment or a resolution of the compliance question.

Step 2: Determination at the Issuance of Letters

SCPA 2307-a directs that the determination of compliance be made in the proceeding for the issuance of letters testamentary. This is important for both sides: the question is teed up at the front end of the estate, not left entirely for the accounting years later. If the acknowledgment is missing, the court will typically note on the record — or in the decree granting probate — that commissions are limited to one-half of statutory commissions. The same issue can arise when preliminary letters are sought before probate is complete; the scope of a preliminary appointee's authority and compensation is discussed in our page on SCPA 805 and the powers of a preliminary executor.

Step 3: Fixing Commissions at the Accounting

Although compliance is determined at probate, the commissions themselves are actually computed and awarded when the executor accounts — either voluntarily or after beneficiaries bring a proceeding to compel an accounting under SCPA 2205. At the accounting stage, beneficiaries should verify that the commission calculation in the account reflects the one-half limitation if no valid acknowledgment was filed. An attorney-executor who takes full commissions despite noncompliance can be surcharged for the excess.

Step 4: Separate Review of Legal Fees

The half-commission rule addresses only commissions. The attorney-executor's legal fees for work performed as counsel to the estate are governed by a different standard: the Surrogate's Court has independent authority to review and fix the reasonableness of attorney compensation. Beneficiaries who believe the legal fees are excessive — for example, where the attorney billed legal rates for ordinary executorial tasks like marshaling bank accounts or paying bills — can seek review in a proceeding under SCPA 2110. A recurring theme in the case law is that an attorney-executor may not "double dip" by charging legal fees for work that is properly executorial and already compensated by commissions.

Timing Rules and Deadlines

• During the testator's lifetime only. The acknowledgment must be signed by the testator. It can be executed before, with, or after the will — but never after death. There is no way to cure noncompliance once the testator has died. An affidavit from the attorney saying the disclosure was made orally does not substitute for the testator's signed written acknowledgment.
• At probate. The acknowledgment should be filed with the probate petition, and the compliance determination is made when letters testamentary issue. Beneficiaries and other interested parties who want to contest a claimed acknowledgment (for example, on grounds that it was not properly witnessed or does not substantially conform to the statutory models) should raise the issue in the probate proceeding.
• At the accounting. If full commissions are claimed despite noncompliance, objections to the commission calculation must be filed within the time set by the court's citation or scheduling order in the accounting proceeding.

What SCPA 2307-a Does Not Do

It is important to keep the statute's limited scope in mind:

• It is not a removal statute. Noncompliance with SCPA 2307-a does not disqualify or remove the attorney-executor. If beneficiaries believe the attorney-executor has committed misconduct — self-dealing, waste, failure to account, or dishonesty — removal is a separate proceeding under SCPA 711, with its own grounds and standards.
• It is not a will contest ground. A missing acknowledgment does not invalidate the will or the executor nomination. (An attorney-drafter who is also a beneficiary under the will raises different concerns — a potential inference of undue influence — but that is a distinct doctrine from SCPA 2307-a.)
• It does not cap legal fees. Legal fees remain payable and are reviewed for reasonableness under SCPA 2110 regardless of 2307-a compliance.
• It does not apply to non-attorney executors, or to attorneys named as executor in wills they had no role in drafting and no affiliation with the drafter.

Common Pitfalls

For Attorney-Executors

• The attorney witnesses the acknowledgment alone. The statute requires a witness other than the executor-designee. An acknowledgment witnessed only by the attorney named as executor is defective.
• Using a homemade form that omits a disclosure. The most commonly omitted element is the third disclosure — that the attorney-executor may receive both commissions and legal fees. A form that mentions commissions but not the dual compensation does not substantially conform to the statutory models.
• Failing to file the acknowledgment. A perfectly executed acknowledgment sitting in the will file does no good if it is never filed in the probate proceeding. File it with the petition.
• Overlooking affiliation. Attorneys sometimes assume the statute applies only when the drafter personally is named. Naming a partner, associate, or employing attorney triggers the same requirement.
• Old wills. Wills drafted decades ago, before the statute or before the attorney's office adopted a standard form, frequently lack acknowledgments. When a client updates a will or the attorney discovers the gap, a freestanding acknowledgment can still be executed — but only while the testator is alive and competent.

For Beneficiaries

• Not checking the court file. Beneficiaries often have no idea the statute exists. If the executor is the lawyer who wrote the will, request the probate file and look for the acknowledgment of disclosure. If it is absent, the commission should be halved.
• Accepting a defective acknowledgment at face value. Examine the document: Is it signed by the decedent? Is there a witness other than the attorney-executor? Does it contain all three disclosures? Defects can be raised in the probate proceeding or by objection at the accounting.
• Ignoring the fee side. Even where the acknowledgment is valid and full commissions are payable, the attorney's legal fees remain reviewable under SCPA 2110, and executorial work billed as legal work is objectionable.
• Confusing the remedies. The half-commission limitation is automatic upon noncompliance; misconduct-based surcharge or removal requires separate proof under the fiduciary-misconduct statutes.

Practical Checklist

If you are a testator whose lawyer suggests naming the lawyer as executor: you are entitled to the written disclosure before you decide. Ask what the commissions would be on your estate, whether the lawyer will also bill legal fees, and whether a family member could serve instead (possibly with the lawyer as counsel rather than executor).

If you are a beneficiary of an estate where the drafting attorney is serving as executor: obtain the probate file, locate (or confirm the absence of) the SCPA 2307-a acknowledgment, monitor the commission calculation at the accounting, and scrutinize the legal fee request separately.

If you are an attorney-executor: confirm a conforming acknowledgment exists and is filed, calculate commissions correctly if it does not, and keep time records that clearly separate executorial tasks from genuine legal services.

Albert Goodwin is a New York estate attorney who represents beneficiaries challenging attorney-executor compensation as well as fiduciaries defending their commissions and fees in Surrogate's Court proceedings throughout New York.

You can contact us by phone at 212-233-1233 or by email at [email protected].