Can an Executor Change Their Mind After Waiving Fees in Ontario?

Many executors say early on, often at a family meeting or in an email, that they will not charge anything. Then the estate turns out to be harder than expected: a house to sell, years of tax filings, a family dispute. Now the executor wonders if they can still be paid, and the beneficiaries wonder if the earlier promise still counts.

This article explains the starting rules for executor compensation in Ontario, why the wording of the will matters, and what each side can raise. It is general information. Whether a particular statement amounts to a binding waiver depends on the facts, and a lawyer can confirm where you stand.

The starting point: executors may be paid

Under the Trustee Act, a trustee, guardian or personal representative, which includes an executor, is entitled to a fair and reasonable allowance for care, pains and trouble and for the time spent in and about the estate. That allowance is the amount a judge of the Superior Court of Justice allows.

The amount of compensation can be settled even when the estate is not before the court in an action. When accounts are passed, the judge can allow a fair and reasonable allowance for care, pains, trouble and time. If compensation has not been fixed by the trust document or otherwise, the judge on a passing of accounts has power to fix it, and the trustee may then keep that amount out of money held.

In plain words, the law does not treat the role as unpaid by default. But the amount is not whatever the executor decides. It is meant to be fair and reasonable, and a judge has the final word if it is challenged.

When the will already answers the question

The statutory allowance does not apply where the allowance is fixed by the document that creates the trust. So if the will sets the executor's pay, or says the executor acts without pay, the will governs.

That makes the first step simple: read the will. A clause saying the executor serves without compensation is very different from a casual remark made after the funeral. How an earlier acceptance of an unpaid role affects a later claim depends on the situation, so it is worth confirming with a lawyer. If the will is silent, the default rules above are the starting point.

An informal promise not to charge

The harder case is where the will says nothing, and the executor later says, in a conversation, text or email, that they would not take a fee. Whether that statement stops them from claiming later is not something a general article can answer. It depends on what was actually said, to whom, whether it was clear and unconditional, and whether the beneficiaries relied on it.

Some practical questions are worth thinking through, although how they apply depends on your situation:

• Exact wording. What, precisely, was said or written, and how clear was it?
• Timing. Was the promise made before the executor knew how much work the estate would involve?
• Reliance. Did beneficiaries agree to a distribution, skip getting advice, or change their plans because of it?
• Written evidence. Emails, texts and meeting notes often decide what was really said.
• Change of circumstances. Did the work grow far beyond what anyone expected, such as a contested claim or a difficult asset?

Because these questions turn on evidence, an executor who wants to reverse course, or a beneficiary who wants to hold them to their word, should get advice before taking money out of the estate.

What beneficiaries can raise, and how it gets decided

An executor generally does not have to pass accounts in court unless someone asks. An executor or administrator need not render an account of the deceased's property other than by inventory unless it is requested by or for a person interested in the property, or by a creditor. So a beneficiary who doubts a fee claim can ask for accounts.

If accounts are passed, the judge may make a full inquiry into the whole property of the deceased and its administration. The judge may also hear complaints of misconduct, neglect or default by the executor that caused loss to the estate, and may order damages or other relief, subject to appeal. A trustee who wants to pass accounts can file them in the Superior Court of Justice.

Even if an executor is allowed to claim, the figure still has to be fair and reasonable. A judge, not the executor, decides what that means if there is a disagreement.

What to do next

• Read the will for any clause about compensation or serving without pay.
• Collect every email, text or note where fees were discussed.
• Executors: keep a running record of tasks, dates and time from now on, and avoid paying yourself until the question is settled.
• Beneficiaries: consider asking in writing for an accounting before agreeing to any fee.
• Try to reach a written agreement signed by everyone, if possible.
• If there is no agreement, talk to an estates lawyer about whether a passing of accounts is the right route.

Frequently asked questions