Can an Executor Be Paid in Manitoba, and How Much?

Settling an estate can take many hours over many months. Executors often ask whether they can be paid, and whether there is a standard rate like the percentages people sometimes mention.

In Manitoba the answer is based on fairness rather than a formula. This article explains what the law says, how a fee set in a will is treated, and how accounts are reviewed by the Court of King's Bench.

This article covers the law of Manitoba.

Yes, a fair and reasonable allowance

Under The Trustee Act, a trustee, guardian or personal representative is entitled to a fair and reasonable allowance for care, pains, trouble and time spent on the estate. Manitoba has no fixed percentage in this section; the amount is simply fair and reasonable.

That means a rule of thumb you may have heard, such as a set percentage of the estate, is not a legal entitlement. What counts is the work actually done and whether the amount claimed is fair for it.

Fees set in a will and lawyer executors

A will or other document signed by the testator, or for the testator, that fixes the executor's compensation is not valid unless a judge approves it. A fee set in the will is therefore not automatic.

There is also a rule for professionals. Where a barrister or solicitor is the executor and has provided necessary professional services to the estate, the court may increase the allowance by a fair and reasonable amount.

How accounts are passed in court

Passing accounts is a formal court process, and how it applies to your estate is worth confirming with a lawyer. A trustee may file accounts in the court office to have them passed, but not more often than once in each year. A judge, or the Registrar or associate judge to whom the matter is referred, may take and pass a trustee's accounts even when the estate is not before the court in a suit.

The form for applying to pass accounts is Form 74Z, Notice of Application to Pass Accounts. Form 74BB is the Appointment to Pass Accounts and Form 74AA is the Affidavit Verifying Application and Accounts. On passing the accounts of an executor, administrator, executor-trustee or guardian, at least 14 days' notice of the accounting is required unless the court directs shorter notice.

When someone challenges the accounts

The court may require an executor or administrator to account for the deceased's property, on its own motion or on application by an interested person, a creditor or a surety. In an administration action brought by a creditor or beneficiary, if no accounts or insufficient accounts were given, the court may order the executor or trustee to provide a proper statement of accounts.

Trustees may also, in their discretion and not more than once in every three years, have the trust accounts examined or audited by an independent accountant. For a long-running trust, that can help show beneficiaries that the numbers are sound.

If you are named executor but do not want the job

Before thinking about pay, you may be deciding whether to act at all. The court may summon a person named executor in a will to prove the will. A named executor who does not want the job should renounce rather than ignore the matter.

Renouncing ends the executorship and any trusteeship, and the estate's representation and administration pass as if you had never been named executor. The exception is that the renunciation can expressly reserve the trusteeship, in which case the trusteeship under the will does not end. The form is Form 74N, Renunciation of Probate or Letters of Administration with Will Annexed, filed with an Affidavit of Execution of Renunciation, Form 74X.

Form 74O is a different form, used by a person entitled to letters of administration on an intestacy, not by a named executor. An executor who has renounced is also excluded from the Trustee Act definition of personal representative. How this applies to you depends on your situation, so it is worth confirming with a lawyer.

What to do next

• Keep a dated log of tasks and the time they took.
• Keep receipts for every expense paid from the estate.
• Before paying yourself, check that the amount is fair and reasonable for the work done.
• Check whether the will mentions a fee, and remember it needs a judge's approval.
• Consider passing your accounts if there is any disagreement.
• Ask a lawyer or accountant about the tax treatment of any payment to you.

Frequently asked questions