When a New York attorney drafts a will and is named in it as executor, the attorney stands to be paid twice from the same estate: statutory executor commissions and legal fees for the estate’s legal work. Surrogate’s Court Procedure Act § 2307-a exists to make sure the client understood that before signing. The drafting attorney must give the testator a specific written disclosure and obtain the testator’s signed acknowledgment of it. If the acknowledgment is missing or defective, the attorney still serves and still earns legal fees, but the executor commissions are cut to one-half.
This page explains what the statute requires, who it reaches, how much money is at stake, how compliance is decided in Surrogate’s Court, and the mistakes that most often cost an attorney-executor half of the commissions or hand the beneficiaries a valuable objection.
The Problem the Statute Solves
Nothing in New York law forbids an attorney from serving as executor of a will the attorney drafted; any eligible adult may serve. The concern is informed consent. Many clients assume that naming their lawyer as executor is simply part of the plan, without realizing that they could have named a spouse, child or friend instead (no legal training is needed), that whoever serves earns statutory commissions under SCPA 2307 which on a moderate estate run to tens of thousands of dollars, and that an attorney who serves as executor and also does the estate’s legal work is generally entitled to both the commissions and reasonable legal fees.
SCPA 2307-a does not prohibit the double compensation. It requires that the testator be told about it in writing and sign an acknowledgment that the disclosure was made.
The Three Required 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 executor, the testator must be told three things.
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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.
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Executors earn commissions
Absent an agreement to the contrary, any person who serves as executor is entitled to statutory commissions under SCPA 2307.
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An attorney-executor may collect both
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 the document has its own formal requirements. It must be signed by the testator. It must be witnessed by at least one person other than the executor-designee, so the attorney named as executor cannot be the sole witness. It may be executed before, at the same time as, or after the will; a separate acknowledgment signed months or years after the will still counts, as long as the testator signed it during life. And it must be filed in the probate proceeding with the will.
The statute sets out model acknowledgment forms, one for an acknowledgment executed together with the will under the attorney’s supervision and one for an acknowledgment executed at another time. An acknowledgment that conforms or substantially conforms to a model is deemed compliant. The “substantially conforms” language was added by amendment in 2004, after a run of cases in which acknowledgments were attacked over minor wording deviations. Courts now ask whether the document actually conveys the substance of the three disclosures, not whether it copies the model word for word.
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Who counts as the “attorney”: the affiliation rules
The statute cannot be avoided by naming a law partner or associate instead of the drafter. It reaches the attorney who prepared the will; an employee of that attorney, or an attorney who employs the drafter; and any attorney affiliated with the drafter, including members and associates of the same firm and counsel relationships. If one lawyer at a firm drafted the will and another lawyer at the same firm is named executor, the disclosure and acknowledgment requirements apply in full.
The Consequence: 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 of the statutory commissions that would otherwise be payable under SCPA 2307. Noncompliance does not disqualify the attorney from serving, does not invalidate the will or the appointment, and does not reduce the attorney’s separate legal fees for legal work done for the estate (those fees remain subject to review under SCPA 2110, discussed below).
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The SCPA 2307 commission schedule
To see 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. Our executor commission calculator applies the schedule to any estate value.
Estate value band 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% -
Worked example: a $1,000,000 probate estate
Suppose the attorney drafted the will, is named sole executor, and the commissionable estate is $1,000,000. Full commissions are 5% of the first $100,000 ($5,000), plus 4% of the next $200,000 ($8,000), plus 3% of the next $700,000 ($21,000), for a total of $34,000. If no valid SCPA 2307-a acknowledgment was executed, the 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.
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Worked example: a $600,000 estate
Full commissions are $5,000 on the first $100,000, $8,000 on the next $200,000 and $9,000 on the remaining $300,000, a total of $22,000. Without compliance the attorney-executor receives $11,000. The reduction applies only to the attorney-executor’s commission. If the attorney serves with 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 Decided in Surrogate’s Court
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Filing with the probate petition
The signed acknowledgment should be filed with the probate petition. The official 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.
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Determination when letters issue
SCPA 2307-a directs that compliance be determined in the proceeding for the issuance of letters testamentary. The question is settled at the front end of the estate, not left for the accounting years later. If the acknowledgment is missing, the court typically notes on the record, or in the decree granting probate, that commissions are limited to one-half. The same issue arises when preliminary letters are sought before probate is complete; see our page on SCPA 805 and the powers of a preliminary executor.
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Fixing commissions at the accounting
Although compliance is decided at probate, the commissions themselves are computed and awarded when the executor accounts, either voluntarily or after beneficiaries petition to compel an accounting under SCPA 2205. Beneficiaries should check that the commission calculation in the account reflects the one-half limit if no valid acknowledgment was filed. An attorney-executor who takes full commissions despite noncompliance can be surcharged for the excess.
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Separate review of legal fees
The half-commission rule touches only commissions. The attorney-executor’s legal fees 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 fees are excessive, for example where the attorney billed legal rates for ordinary executorial tasks such as marshaling bank accounts or paying bills, can seek review 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 paid for by commissions.
Timing
The acknowledgment must be signed by the testator, which means during the testator’s lifetime only. 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, and an affidavit from the attorney saying the disclosure was made orally does not substitute for the testator’s signed writing.
At probate, the acknowledgment should be filed with the petition and the compliance determination is made when letters issue. Beneficiaries who want to contest a claimed acknowledgment, for example because 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 citation or the court’s scheduling order.
What the Statute Does Not Do
Its scope is narrow, and it helps to keep the boundaries in view.
| SCPA 2307-a is not | What governs instead |
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| A removal statute | Noncompliance does not disqualify or remove the attorney-executor. Misconduct such as self-dealing, waste, failure to account or dishonesty is addressed by a separate removal proceeding under SCPA 711, with its own grounds and standards |
| A will contest ground | A missing acknowledgment does not invalidate the will or the executor nomination. An attorney-drafter who is also a beneficiary raises a different concern, a potential inference of undue influence, but that is a distinct doctrine |
| A cap on legal fees | Legal fees remain payable and are reviewed for reasonableness under SCPA 2110 regardless of 2307-a compliance |
| Applicable to everyone | It does not reach non-attorney executors, or attorneys named in wills they had no role in drafting and no affiliation with the drafter |
Common Pitfalls
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For attorney-executors
The commonest defect is an acknowledgment witnessed only by the attorney named as executor; the statute requires a witness other than the executor-designee. Next is a homemade form that omits a disclosure, most often the third one, 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 models.
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. Attorneys also overlook affiliation and assume the statute applies only when the drafter personally is named, when naming a partner, associate or employing attorney triggers the same requirement. Wills drafted decades ago, before the statute or before the office adopted a standard form, frequently lack acknowledgments. When the client updates the will or the gap is discovered, a freestanding acknowledgment can still be executed, but only while the testator is alive and competent.
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For beneficiaries
Most beneficiaries have never heard of the statute. 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. If there is an acknowledgment, examine it: 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.
Do not ignore the fee side. Even where the acknowledgment is valid and full commissions are payable, the legal fees remain reviewable under SCPA 2110, and executorial work billed as legal work is objectionable. And keep the remedies straight: the half-commission limit is automatic on noncompliance, while surcharge or removal for misconduct requires separate proof under the fiduciary-misconduct statutes.
A Practical Checklist
A testator whose lawyer suggests naming the lawyer as executor is entitled to the written disclosure before deciding. 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, with the lawyer as counsel rather than executor.
A beneficiary of an estate in which the drafting attorney is serving as executor should obtain the probate file, locate the SCPA 2307-a acknowledgment or confirm its absence, watch the commission calculation at the accounting, and scrutinize the legal fee request separately.
An attorney-executor should confirm that a conforming acknowledgment exists and is filed, compute commissions at one-half if it does not, and keep time records that clearly separate executorial tasks from genuine legal services.
Is the Lawyer Who Wrote the Will Claiming Full Commissions?
For a beneficiary, we examine the probate file for a valid SCPA 2307-a acknowledgment, object to excessive commissions and legal fees at the accounting, and pursue surcharge where the estate overpaid. For an attorney-executor facing objections, we defend the validity of the acknowledgment and the reasonableness of the compensation before the Surrogate.
Call the Law Offices of Albert Goodwin at 212-233-1233 or write to [email protected].
