Executor’s fee
Question:-
Is it permissible for an executor to charge a fee in lieu of his services? South African law permits the executor to charge a percentage of the nett estate value for services offered. Please clarify what is the Shari’ee ruling!
Can a Muslim woman serve as’an executor?
Answer:-
It is recorded in Raddul Muhtaar that according to the correct view, the executor of the deceased does not receive a fee for his services.
واما وصي الميت فلا اجر له علي الصحيح (رد المحتار ص713 ج6)
If you, as the testator, stipulate that a certain amount should be paid to the executor for attending to the estate, then such a transaction falls in the category of Ijaarah (a hiring agreement.) The executor only assumes responsibility on your demise, whereas the hiring agreement (between and employer and employee) becomes null and void on the demise of any one of the parties. However, some jurists have regarded it as a gift and stated that it may be paid from the one third of the estate that is allocated for bequests.
Notwithstanding the above, the correct view is recorded above that the executor is not entitled to charge a fee for his services (as this is a voluntary act.) Yes, if there are expenses involved in winding up the estate, then the executor is entitled to charge all such expenses to the estate.
وفي الخانية: أوصى إلى رجل واستأجره بمائة درهم لانفاذ وصيته، قالوا: لا يكون إجارة لانه إنما يصير وصيا بعد الموت والاجارة تبطل به، بل يكون صلة فيعطى له من الثلث.
قال: لك أجر مائة على أن تكون وصيي. اختلفوا فيه: قال نصير: الاجارة باطلة ولا شئ له. (رد المحتار ص713 ج6)
فلو أراد أجرة لعمله قبل فرض القاضي ليس له ذلك لشروعه متبرعا كما في الخيرية. (رد المحتار ص713 ج6)
However, if you as the testator bequeath a certain amount of money for the executor (not in lieu of his duties but as a gift from the estate), then he will be entitled to such funds as long as it is within the 1/3 limit allocated for bequests in Shariah.
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There is no problem in appointing a female as an executor of the estate with the proviso that she is mature and intelligent. However, it is best that a male is appointed, since an executor will be required to leave the house and attend to matters pertaining to the estate.