§ 28A-23-3. Commissions allowed personal representatives; representatives guilty of misconduct or default.
§ 28A‑23‑3. Commissions allowed personal representatives; representatives guilty ofmisconduct or default.
(a) Personalrepresentatives, collectors or public administrators shall be entitled tocommissions to be fixed in the discretion of the clerk of superior court not toexceed five percent (5%) upon the amounts of receipts, including the value ofall personal property when received, and upon the expenditures made inaccordance with law. In determining the maximum commissions allowable underthis subsection, the clerk of superior court may take into consideration feespaid by the estate for professional services performed in the ordinary courseof administering the estate, including services performed by attorneys andaccountants. However, the clerk is not required to reduce the maximumcommissions allowed by the aggregate fees paid to professionals on a dollar‑for‑dollarbasis.
The commissions shall becharged as a part of the costs of administration and, upon allowance, may beretained out of the assets of the estate against creditors and all otherpersons claiming an interest in the estate. If the gross value of an estate istwo thousand dollars ($2,000) or less, the clerk of superior court may fix thecommission to be received by the personal representative, collector or publicadministrator in an amount the clerk of superior court, in the clerk'sdiscretion, deems just and adequate.
(b) In determining theamount of the commissions, both upon personal property received and uponexpenditures made, the clerk of superior court shall consider the time,responsibility, trouble and skill involved in the management of the estate.Where real property is sold to pay debts or legacies, the commission shall becomputed only on the proceeds actually applied in the payment of debts orlegacies.
(c) The clerk ofsuperior court may allow commissions from time to time during the course of theadministration, but the total commissions allowed shall be determined on finalsettlement of the estate and shall not exceed the limit fixed in this section.
(d) Nothing in thissection shall be construed to:
(1) Prevent the clerk ofthe superior court from allowing reasonable sums for necessary charges anddisbursements incurred in the management of the estate.
(2) Allow commissions ondistribution of the shares of heirs or on distribution of shares of devisees.
(3) Abridge the right ofany party interested in the administration of a decedent's estate to appeal anorder of the clerk of superior court to a judge of superior court.
(e) No personalrepresentative, collector or public administrator, who has been guilty ofdefault or misconduct in the due execution of his or her office resulting inthe revocation of his or her appointment of the personal representative,collector, or public administrator under the provisions of G.S. 28A‑9‑1,shall be entitled to any commission under the provisions of this section.
(f) For the purpose ofcomputing commissions whenever any portion of the dividends, interest, rents orother amounts payable to a personal representative, collector or publicadministrator is required by any law of the United States or other governmentalunit to be withheld for income tax purposes by the person, corporation,organization or governmental unit paying the same, the amount withheld shall bedeemed to have been received and expended.
(g) Subsection (a) ofthis section does not apply if the testator's will specifies a stipulatedamount or method or standard for determining the compensation for the servicesrendered by the personal representative, including a provision in the will thatthe compensation of the personal representative is to be determined by applyingthe personal representative's regularly adopted schedule of compensation ineffect at the time of performance of those services. Subsection (a) of thissection also shall not apply if the testator's will provides that the personalrepresentative is to receive "reasonable compensation" for thoseservices or similar language to that effect if the personal representative andthe beneficiaries whose shares would be charged with the payment of thepersonal representative's compensation consent in writing to the specificamount that constitutes reasonable compensation.
(h) Subsection (a) ofthis section shall apply if the testator's will provides that compensation ofthe personal representative shall be the amount "as provided by law,"the "maximum amount provided by law," or other similar language. (1868‑9, c. 113, s. 95;1869‑70, c. 189; Code, s. 1524; Rev., s. 149; C.S., s. 157; 1941, c. 124;1953, c. 855; 1959, c. 662; c. 879, s. 8; 1961, cc. 362, 575; 1973, c. 1329, s.3; 1977, c. 814, s. 2; 2005‑388, s. 1.)