A personal representative is entitled to reasonable compensation for his services. If a will provides for compensation of the personal representative and there is no contract with the decedent regarding compensation, he may renounce the provision before qualifying and be entitled to reasonable compensation. A personal representative also may renounce his right to all or any part of the compensation. A written renunciation of the fee may be filed with the court.

History: 1953 Comp., § 32A-3-719, enacted by Laws 1976 (S.S.), ch. 37, § 10; repealed and reenacted by Laws 1995, ch. 210, § 38.

Official comments. — See Commissioners on Uniform State Law official comment to 3-719 UPC.

Repeals and reenactments. — Laws 1995, ch. 210, § 38 repealed 45-3-719 NMSA 1978, as enacted by Laws 1976 (S.S.), ch. 37, § 10, and enacted a new section, effective July 1, 1995.

Compiler's notes. — This section is similar to former 31-10-1, 1953 Comp.

Use of compensation statute enacted after commencement of estate proceedings. — The constitutional prohibition against affecting right or remedy of a party in a pending case does not prevent the use of the administrator's compensation statute which was in effect at the time of allowing such compensation where it differed from the statute in effect at the time of commencement of the estate proceeding. In re Hildebrand's Estate, 1953-NMSC-113, 57 N.M. 778, 264 P.2d 674 (decided under former law).

Compensation law in effect at time of account governs. — The compensation of a personal representative is governed by the law in effect at the time of the settlement of his account and making the order allowing the award. In re Hildebrand's Estate, 1953-NMSC-113, 57 N.M. 778, 264 P.2d 674 (decided under former law).

Amount allowed executrix proper. — Where record shows amount allowed executrix to be the statutory allowance as set under this section (31-10-1, 1953 Comp., repealed), the allowance was proper. National Agric. Coll. v. Lavenson, 1951-NMSC-081, 55 N.M. 583, 237 P.2d 925 (decided under former law).

United States treasury notes are "cash" and fall within the category of probate assets in this section that calls for a reduced rate of compensation for personal representatives. In re Estate of Corwin, 1987-NMCA-100, 106 N.M. 316, 742 P.2d 528 (decided under former law).

Additional compensation. — Under some circumstances, the introductory phrase "Unless otherwise ordered by the court," added in 1976, gives the trial court the authority to award reasonable fees above the amount authorized by the general compensation formula. In re Estate of Greig, 1988-NMCA-037, 107 N.M. 227, 755 P.2d 71 (decided under former law).

Additional compensation for legal fees. — The introductory phrase added to this section in 1976 authorizes additional allowance for the performance of extraordinary services including legal services, where shown to be legal services not ordinarily performed by a personal representative and not duplicative of legal services rendered by personal representative's firm. In re Estate of Greig, 1988-NMCA-037, 107 N.M. 227, 755 P.2d 71 (decided under former law).

Assets considered in awarding compensation. — Only estate assets may be considered in setting the personal representative's fee; assets of a trust created by decedent before her death, even though available for the reasonable expenses of estate administration as may be allowed, cannot be considered. In re Estate of Greig, 1988-NMCA-037, 107 N.M. 227, 755 P.2d 71 (decided under former law).

Additional compensation on account of realty to representative was warranted where administrator had contributed about $8,000 of personal funds, devoted a great deal of time to the real estate, conducted successful litigation involving water rights for the land and sold it at a substantial profit without the customary brokerage commission. In re Hildebrand's Estate, 1953-NMSC-113, 57 N.M. 778, 264 P.2d 674 (1953) (decided under former law).

Executor's statutory fee covers defense of final account. — Attending the hearing to defend the final account and report are part of the executor's duties that the statutory fee covers. He may not be awarded additional fees for that time. In re Will of Hamilton, 1981-NMSC-120, 97 N.M. 111, 637 P.2d 542 (decided under former law).

Payments not based on filed claims or court order improper. — Where payments made by the executor to himself are not based upon claims filed nor are they paid pursuant to motion and order of the court, they are improper and cannot be allowed. In re Will of Hamilton, 1981-NMSC-120, 97 N.M. 111, 637 P.2d 542 (decided under former law).

Trial court may set attorney fees on quantum meruit basis having due regard for the circumstances of the particular case. Hoxsey v. Fullerton, 1960-NMSC-020, 67 N.M. 77, 352 P.2d 652 (decided under former law).

Personal representative to be compensated only when duties finished. — A personal representative is entitled to compensation only when he has finished the duties imposed upon him, since it is only then that the court can fully evaluate his services. In re Hildebrand's Estate, 1953-NMSC-113, 57 N.M. 778, 264 P.2d 674 (decided under former law).

Fees may differ for good cause shown. — The statutory policy of allowing attorneys' fees in an amount equal to the administrator's compensation is not without exception, and the attorneys' fees may be otherwise fixed by the court for good cause shown. In re Keel's Estate, 1933-NMSC-068, 37 N.M. 569, 25 P.2d 806 (decided under former law).

Statutory compensation for attorneys binding on court. — Except where a will otherwise provides, the compensation prescribed in the governing statute is binding upon the court. 1945 Op. Att'y Gen. No. 45-4671 (decided under former law).

Am. Jur. 2d, A.L.R. and C.J.S. references. — Right of executor to an allowance for expenses incurred in unsuccessful attempt to uphold particular provisions of will, 7 A.L.R. 1499.

Death of trustee, executor, administrator or guardian as affecting right to compensation, 7 A.L.R. 1595.

Right of executor, administrator or testamentary trustee, who is himself an attorney, to employ attorney at the expense of the estate, 18 A.L.R. 635.

Revocation of letters testamentary as affecting expenses and disbursements by executor or administrator thereafter, 31 A.L.R. 846.

Computation of commissions of executors, administrators or trustee as affected by lien on or outstanding interest in property, 46 A.L.R. 239.

Right of executor or administrator to extra compensation for services other than attorney's services, 66 A.L.R. 512.

Right of executor or administrator to commissions as affected by fault in administration, 83 A.L.R. 726.

Allowance out of decedent's estate for costs and attorneys' fees incurred by parties interested in granting or revoking of letters of administration or letters testamentary, 90 A.L.R. 101.

Change in statute after decedent's death and before final account or after creation of trust as affecting compensation, 91 A.L.R. 1421.

Right of executor, administrator or testamentary trustee to allowance of attorneys' fees and expenses incident to controversy over surcharging his account, 101 A.L.R. 806.

Loss or depreciation of assets for which executor, administrator or trustee is not responsible, as affecting the amount of his compensation, 110 A.L.R. 994.

Fees of executor or administrator as applicable to discharge of his indebtedness to decedent, 123 A.L.R. 1285.

Right of executor or administrator to credit on account of advances to distributee before obtaining order of distribution, 126 A.L.R. 780.

Right of personal representative to allowance, out of property involved, for attorneys' fees or other expenses incurred in unsuccessful effort to claim the property for the estate, 126 A.L.R. 1349.

Appraised value of estate as shown by inventory of value at time of settlement as basis for determining commissions of executor or administrator, 173 A.L.R. 1346.

Costs and other expenses incurred by fiduciary whose appointment was improper as chargeable against estate, 4 A.L.R.2d 160.

Fiduciary's compensation on estate assets distributed in kind, 32 A.L.R.2d 778.

Right to allowance out of estate of attorneys' fees incurred in attempt to establish or defeat will, 40 A.L.R.2d 1407.

Right of executor or administrator to extra compensation for legal services rendered by him, 65 A.L.R.2d 809.

Right to double compensation where same person (natural or corporate) acts as executor and trustee, 85 A.L.R.2d 537.

Limiting effect of provision in contract, will or trust instrument fixing trustee's or executor's fees, 19 A.L.R.3d 520.

Resignation or removal of executor, administrator, guardian, or trustee before final administration or before termination of trust, as affecting his compensation, 96 A.L.R.3d 1102.

Authority of probate court to depart from statutory schedule fixing amount of executor's commissions and attorneys' fees, 40 A.L.R.4th 1189.

33 C.J.S. Executors and Administrators § 852.