Applying to have Accounts Passed and Applying for Commission
1. THE OBLIGATION TO KEEP ACCOUNTS If you are an executor or administrator, you have a duty to:
- The obligation to keep accounts
- Filing accounts
- Time to file accounts
- Making an application to pass probate accounts and applying for commission
- Completing UCPR Form 150
- Notice of filing accounts
- Objection to accounts
- Passing accounts: what can be allowed or disallowed
- Determining commission
- Filing your application with the Court
- Considering your application
Every executor or administrator is under a duty to keep a record of how they administer the estate (probate accounts) and to report to the beneficiaries. In most estates it is not necessary for the probate accounts to be filed with the Court or for them to be passed (or approved) by the Court. Passing of probate accounts is a process by which a registrar checks the accounts and verifies that they accurately reflect how the executor or administrator has managed the estate, and that it is in accordance with the terms of the will (if applicable) and the relevant law. 2. FILING ACCOUNTS Probate accounts can be filed with the Court and will be placed on the relevant probate file. The accounts should be prepared in the form of the affidavit that is found at the end of UCPR Form 150. The Motion and filing fee is not required if you are merely filing the accounts and not seeking an order for the accounts to be verified and passed by the Court. Filed accounts can be inspected by beneficiaries.Verified accountsSection 85 of the Probate and Administration Act 1898 (PAA) provides that verified probate accounts need to be filed in certain circumstances including:
- protect the estate and collect the assets of the deceased,
- pay the funeral and testamentary expenses and any debts of the deceased, and after that
- distribute the estate in accordance with the terms of the will or the law in relation to intestacy.
It may also be prudent for an executor or administrator to file probate accounts if there is expected to be a dispute in relation to how the estate has been managed.If an executor or administrator would like the accounts to be passed by the Court the motion and affidavit contained in UCPR Form 150 must be completed and filed in the registry accompanied with the motion filing fee. As a matter of current practice, the Court does not usually require accounts to be passed unless there has been a request by a beneficiary, or the executor/ administrator is applying for commission or the Court has made an order for the passing of accounts in a particular estate. 3. TIME TO FILE ACCOUNTSPart 78 Rule 85 of the Supreme Court Rules provides that accounts should be filed within 12 months of the grant being made or time as extended by the Court. In most simple estates it is expected that the estate will be fully administered within this 12 month period, although this will depend on the nature of the estate and the terms of the will. The Court can make orders extending the time to file accounts or, if appropriate, extend the time to file accounts till further order of the Court. The Court can also make orders dispensing with the requirement to file further accounts.If the administration of the estate is expected to take or is taking more than 12 months, it may be appropriate to prepare and file Interim accounts for the first 12 months (that is, from the date of death of the deceased) and to prepare and file separate accounts for later periods of time (normally covering the next 12 month period and so on). Separate applications can be made for commission in relation to the work covered by each of the separate sets of accounts. The Court can also order an executor or administrator to verify and file, or for the verification, filing and passing, of accounts after a grant has been made. This will usually be done if a beneficiary makes an application to the Court for such orders. 4. COMMISSION An executor or administrator is generally entitled to apply for commission to compensate them for the time and effort involved in administering an estate (or for their "pains and trouble" as provided by section 86 of the PAA). An executor who receives a legacy under the will as a condition of taking on the role may not be entitled to apply for commission. Generally, if there is more than one executor or administrator, the executors or administrators will make a joint application for commission, however, an application can be made by one of several executors or administrators. If an application is made to the Court for commission, the accounts for the period for which commission is being applied for must first be passed. Notwithstanding this the passing of accounts and commission should be sought within the one application.Executors and administrators who believe that they are entitled to apply for commission are encouraged to consult with the beneficiaries who may be affected if commission were to be allowed. If all the affected beneficiaries (normally the residuary beneficiaries) are able to agree that the executor or administrator should be paid an amount by way of commission then there is no need to get approval from the Court for an executor or administrator to be paid a fair amount for their time and effort. Beneficiaries should be made aware that if an executor or administrator is required to apply to pass the accounts and request commission, then the proper legal costs incurred, which can be substantial, will normally be paid from the estate, reducing the residual beneficiaries' share of the estate.The process of applying for commission will take some time, both for the executor or administrator in preparing the relevant documentation, and for the Court to consider the application. This may delay the final distribution of the estate. As such, it will generally be in the interest of both the executor or administrator and the beneficiaries if the issue of commission can be resolved without having to apply to the Court.Applications for the passing of accounts and seeking commission are dealt with in accordance with the Probate Accounts Guidelines.
- the executor or administrator is a creditor of the estate of the deceased, or
- the executor or administrator is the guardian of a minor who is a beneficiary, or
- the whole or a substantial part of the estate passes to one or more charities or public benevolent institutions, or
- the Court determines that it is appropriate that accounts should be filed in a particular case.
- Probate Accounts: Guidelines (dated 11 January 2021) [pdf/word]
5. MAKING AN APPLICATION TO PASS PROBATE ACCOUNTS AND APPLYING FOR COMMISSION
An application to pass accounts and seek commission is made by filing a motion and accompanying affidavit in the subject probate file. The approved form is UCPR FORM 150.
UCPR Form 150 includes the form of the Notice of Motion and the affidavit which sets out the required categories of information for probate accounts and prompts the supporting documents.
If you are uncertain as to whether accounts should be passed, or if you are uncertain as to whether you are entitled to apply for commission, or if the passing of accounts or a claim for commission is likely to be contentious, it is recommended that you seek legal advice from a practitioner who is experienced in probate accounts.
Please note that if you are filing the first set of accounts for the estate you must commence the account ledgers from the date of death of the testator.
The Accounts for the Estate must be:
A reconciliation of the funds held as at the date of filing the accounts. 6. COMPLETING UCPR FORM 150 The information and documents that may be required in the application may vary from case to case and the information in the form should be adapted to cover the particular circumstances. You should delete any instructions or inapplicable words before printing UCPR Form 150.This affidavit is an important document and you should check that it includes all relevant information and makes sense before you save and print the document and have it sworn before a person who may take an affidavit.If the supporting documents are bulky and it is not practical for them to be attached to the affidavit, they should be made exhibits to the affidavit, and the affidavit adapted appropriately. If there is a large number of documents, they should be presented in a folder that has been indexed and paginated to assist the registrar to locate relevant material. You cannot currently submit these forms electronically. They must be printed out, signed and witnessed as necessary, and lodged at or posted to the Supreme Court Registry (with payment of the motion filing fee if applicable).If you have difficultly completing the forms or need further guidance, please contact us by emailing firstname.lastname@example.org Registry staff can assist you with procedural advice only and are unable to provide you with legal advice (for example the content of your affidavit). 7. NOTICE OF FILING ACCOUNTS At least 14 days before you file your motion to pass accounts (and for commission) you will need to publish a notice of your intention to have the accounts passed (and to apply for commission if applicable). The notice is published on the Online Registry. A fee is payable. For further information about lodging this notice and to publish the notice please see:
- prepared on a cash (not accrued) basis and entries to be identified in the accounts as either capital or income (see format in UCPR Form 150 affidavit).
- A proper account of any income/profit received by the estate from the date of death of the testator.
- A proper account of monies disbursed by the estate from the date of death of the testator, including any receipts from the beneficiaries of the estate.
- An account of any asset realised, including any receipts from the beneficiaries of the estate.
- An account of any assets realised and subsequently reinvested.
- An account of any assets transferred, including any in specie distribution, for example, when cash is not readily available and allocating the physical asset is the better alternative. Receipts from the beneficiaries of the estate must be included.
- An account of any part of the estate that remains undisbursed/assets unrealised.
- The receipts and statements of transferred assets and unrealised assets should account for each asset shown in the inventory of property.
- If any asset loss has occurred.
- Any funds expended on professional assistance such as a solicitor, accountant, valuer or real estate agent, and any authority to pay them.
https://onlineregistry.lawlink.nsw.gov.au/content/probate-notices. 8. OBJECTIONS TO ACCOUNTS Any person, but usually a beneficiary or creditor, may object to the accounts being passed, and/or to a claim for commission. An objection does not give the objecting party the ability to make any submissions regarding the accounts until the accounts are at the stage to be passed.Objections are made by:
Objecting parties should acquaint themselves with the procedure set out in Parts 2A and 2B of the Probate Accounts Guidelines.
- Filing a notice of intended objection to the passing of accounts or the allowance of commission prior to the commencement of proceedings for the passing of accounts (see Part 78 Rule 78 of the SCR); or
- Filing and a notice of appearance where proceedings for the passing of accounts have already been filed and have not finalised (see Part 78 Rule 81 of the SCR).
- Probate Accounts: Guidelines (dated 11 January 2021) [pdf/word]
9. PASSING ACCOUNTS: WHAT CAN BE ALLOWED OR DISALLOWED
Before passing the accounts the Registrar may disallow any disbursement in part or in whole and require the executor or administrator to reimburse the estate for the amount disallowed (see section 85 (4) of the PAA).
In proceedings to pass accounts, the Registrar cannot determine issues such as:
- Whether assets form part of the estate,
- Whether assets have been under or overvalued, or
- Whether assets have been properly accounted for or not, or
- Other issues regarding the administration of the estate.
These are matters appropriate to a separate "administration suit" in the Equity Division of the Supreme Court (for example an appropriate application by summons under Part 46 or Part 54 of the Uniform Civil Procedure Rules (UCPR)).
The bills for all professional work must be provided. The Registrar will verify that the bills do not include charges for non-professional work that is executorial in nature. If it is found that the bills include non-professional work, the executor may be ordered to reimburse these amounts to the estate. The Registrar will also moderate a reasonable amount that can be paid from the estate for the professional work that has been undertaken for the estate.
Receipts for any distributions to beneficiaries, including any assets transferred in-specie to a beneficiary, must be provided.
Bank statements showing the closing balance as at the end of the accounts must be provided.
The Registrar may require such additional receipts or other evidence of transactions shown in the accounts and if appropriate, may raise a requisition for further information.
Costs relating to preparing and passing the accounts and in relation to the application for commission should not be included in the accounts or paid from the estate before the accounts are passed. Such costs will be fixed separately by the Registrar as part of the order passing the accounts and allowing commission.
10. DETERMINING COMMISSION
If an executor or administrator is seeking commission, information and evidence in support of commission should be included in a separate affidavit. This information may include a summary of the steps taken in administering the estate, setting out any specific complications or difficulties that were encountered and any other matters that you think may be relevant in determining the commission that should be allowed.
In determining what should be allowed for commission, the Registrar will consider all relevant matters including:
- the size and complexity of the estate,
- the complexity of the terms of the will or scheme of distribution under the will,
- the degree of promptness, efficiency and diligence shown by the executor or administrator in completing tasks,
- the number of routine and complex tasks to be undertaken to disburse the estate,
- the amount of work carried out and time spent,
- the amount of responsibility involved, which may be ongoing,
- problems encountered in the course of administering the estate,
- the number of executors or administrators sharing the load of managing the estate.
Commission is discretionary and will depend on the circumstances of each estate. Commission may be awarded as a lump sum or as a percentage rate. The following ranges of percentages for commission are a guide (only) as to what might be allowed.
- between 0.25% to 1.25% of the value of the assets transfers in specie,
- between 0.25% to 2.5% on the income on capital realisations, and
- between 1% to 5% on income collections.
The Probate Accounts: Guidelines can be found here.
The Court rules in relation to applications to pass accounts and for commission are set out in Part 78 Division 11 of the Supreme Court Rules. The rules can be found here.
The Probate and Administration Act can be found here.
The Schedule of Court Fees can be found here.
The following judgments provide some guidelines in relation to application for commission:
11. FILING YOUR APPLICATION WITH THE COURT
- All applications must be filed at the Supreme Court of New South Wales Registry, either in person or by post.
- Make sure all the correct documentation is included (see UCPR Form 150).
- Include the filing fee. The fee can be paid by cheque, money order, cash or via credit card or EFTPOS facilities.
12. CONSIDERING YOUR APPLICATION
If further information is required before the accounts can be passed the Registrar will raise a requisition asking you to provide additional information or documentation.