- The legal test for an executor's pay is a fair and reasonable allowance, and a judge passing the accounts decides it if you object.
- You can ask the court to order the executor to pass accounts, and a beneficiary can compel accounts.
- A Notice of Objection to Accounts (Form 74.45) must be served at least 35 days before the hearing date.
You have seen a large fee claim from the executor of an estate you are a beneficiary of, and it does not feel right. You may not know what the executor is allowed to take, or how to question it without wrecking the family.
This article explains the test the court applies, how to get the information you need, and the steps in a formal challenge. It is general information, and a lawyer can tell you how it applies to your estate.
What counts as a proper fee
An estate trustee is entitled to a fair and reasonable allowance for their care, pains and trouble and time spent, as allowed by a judge of the Superior Court of Justice. The statute sets no percentage or formula. Compensation can be settled even when the estate is not before the court in an action.
- If the will itself fixes the allowance, the Trustee Act compensation provision does not apply.
- If the executor is a lawyer who has provided necessary professional services to the estate, the allowance may be increased.
- If a beneficiary objects, a judge passing the accounts may allow a fair and reasonable allowance.
Rules of thumb you may hear about, such as a standard percentage, are not in the statute. The question for a court is whether the amount is fair and reasonable.
Get the information first
Estate trustees must keep accurate records of the estate's assets and transactions. A person with a financial interest in the estate may move for an order requiring the estate trustee to file a statement of the nature and value of the estate's assets, give further particulars, or pass accounts. Such motions may generally be made without notice, except a motion for further particulars, which requires 10 days' notice to the estate trustee.
An executor cannot be required by a court to account other than by an inventory, unless at the instance of an interested person or a creditor. A beneficiary is an interested person who can compel accounts.
Before going to court, a polite written request for an accounting and an explanation of the fee often clarifies things. Keep a copy of what you send.
The passing of accounts and your objection
On an application to pass accounts, the estate trustee files the accounts verified by affidavit (Form 74.43), a copy of the certificate of appointment, and any earlier judgment on passing of accounts. The accounts must include a statement of the compensation claimed.
| Step | Timing |
|---|---|
| Serve notice of application and draft judgment on everyone with an interest | At least 60 days before the hearing (75 days if served outside Ontario) |
| Beneficiary serves Notice of Objection to Accounts (Form 74.45) | At least 35 days before the hearing |
| Request for increased costs above Tariff C, with costs outline | At least 15 days before the hearing; objection at least 10 days before |
If no objection is made and the required record is filed, the court may grant judgment without a hearing. That is why the objection deadline matters. If you do not object in time, the fee may be approved without anyone examining it.
Other remedies if there is a bigger problem
Excess fees are sometimes one part of a wider concern. The law gives other routes.
- On passing accounts, a judge may make full inquiry into the deceased's property and order the executor to pay such sum by way of damages or otherwise as is just. This is a route to recover misused estate funds.
- The Superior Court of Justice may remove a personal representative on any ground on which it may remove any other trustee, and appoint another. Any person interested in the estate may apply.
- A person with a financial interest may apply for directions, and the court may direct that an estate trustee during litigation be appointed and file security.
An executor may ask the court to relieve them of personal liability for a breach of trust if they acted honestly and reasonably and ought fairly to be excused. A mistake does not automatically mean a penalty.
What to do next
- Collect the will, any fee statements and any emails about the estate.
- Ask the executor in writing for accounts and an explanation of the fee.
- Check whether the will fixes compensation.
- Diarize the deadlines: 35 days before the hearing for your objection.
- Speak to a lawyer early about whether to move for accounts or object.
Costs, timing and the strength of your position all depend on the facts, so get legal advice before filing anything.
Frequently asked questions
How much can an executor charge in Ontario?
The Trustee Act allows a fair and reasonable allowance for care, pains and trouble and time spent, and sets no percentage or formula. If the will fixes the allowance, that provision does not apply.
Can I make the executor show me the accounts?
A beneficiary is an interested person who can compel accounts. You may also move for an order requiring the executor to pass accounts.
How long do I have to object to the fee?
A Notice of Objection to Accounts (Form 74.45) must be served at least 35 days before the hearing date. Missing it risks judgment without a hearing.
Can an executor be removed for taking too much?
The Superior Court of Justice may remove a personal representative on any ground on which it may remove any other trustee, and any interested person may apply. Whether excess fees alone justify removal depends on the facts.
Sources
- Trustee Act, R.S.O. 1990, c. T.23 (e-Laws) — Ontario e-Laws
- Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (e-Laws) — Ontario e-Laws
- Estates Act, R.S.O. 1990, c. E.21 (e-Laws) — Ontario e-Laws
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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