Executor Fees on a Small Estate in Ontario: What Is Fair?

You may be the executor of an estate that is not large, yet the job has been heavy: clearing a home, dealing with several institutions, filing tax returns, answering family questions. When you look at a simple percentage of a small estate, the number can feel too low for the effort. Or you may be a beneficiary who worries that any fee will eat a small inheritance.

Ontario law does not set a fixed rate for executors in the statute. It asks what is fair and reasonable. This article explains how that works, who decides, and how to put together a claim that can stand up if questioned.

What counts as a small estate

For probate purposes, Ontario treats an estate valued at $150,000 or less as a small estate, a definition in effect since April 1, 2021. A Small Estate Certificate gives authority over the assets listed in it. Whether an estate is small for probate has no direct link to how much work an executor does, though. A modest estate with a rental property, a business interest or a family dispute can take more effort than a larger, tidy one.

What the law says about the amount

A trustee, guardian or personal representative, including 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, as allowed by a judge of the Superior Court of Justice. On a passing of accounts, the judge can allow that fair and reasonable allowance. The amount can also be settled even if the estate is not before the court in an action.

Notice what the statute does not do: it does not set a percentage. It focuses on the care, pains, trouble and time involved. Rules of thumb exist in practice, but they are guides that come from court decisions, and they are not a substitute for the fairness test. If a rule of thumb gives an unfair result for a small estate, the underlying question is still what is fair and reasonable for this estate and this work. A lawyer can explain how courts have applied that test.

Two other points matter. If the will fixes the allowance, or says the executor acts without pay, the statutory rule does not apply and the will governs. And where the executor is a lawyer who has provided necessary professional services to the estate, the allowance may be increased by an amount considered fair and reasonable for those services.

Showing the work was real

Ontario describes the estate trustee's job as winding up the deceased's affairs, paying taxes, bills and debts, and collecting the assets and distributing what is left to those entitled. Because the claim is based on care, pains, trouble and time, the more clearly you can show what you actually did, the easier it is to explain the figure.

• A dated log of tasks, such as calls, visits, sorting and clearing property, and meetings with advisers.
• Copies of tax filings and any correspondence with the Canada Revenue Agency or Ontario.
• Records of problems you had to solve, such as missing documents, a difficult asset or a disagreement among beneficiaries.
• A clear record of expenses you paid yourself, kept separate from your own claim for time.
• Statements showing how the estate's money was handled.

How much weight any record carries depends on the facts of your estate, so it is worth confirming with a lawyer.

How a dispute gets resolved

An executor does not have to pass accounts in court unless asked. An account other than by inventory need not be rendered unless requested by or for a person interested in the property, or by a creditor. A beneficiary can therefore ask to see the accounts before agreeing to any fee.

If the matter goes to a passing of accounts, the judge may make a full inquiry into the whole property of the deceased and its administration. Where compensation has not been fixed by the trust document or otherwise, the judge can fix it, and the trustee may then retain that amount out of money held. A trustee who wants accounts passed can file them in the Superior Court of Justice.

Court takes time and costs money, which matters in a small estate. That is a good reason to try to agree the figure openly first.

What to do next

• Check the will for any clause fixing compensation or saying the executor acts without pay.
• Start or finish a detailed record of the work and expenses.
• Prepare a simple written summary of what you did and the amount you propose.
• Share it with the beneficiaries and invite questions before you pay yourself anything.
• Ask for a signed agreement or release from every beneficiary.
• If someone objects, speak to an estates lawyer before taking any funds.

Frequently asked questions