How Much Can an Executor Charge in Nova Scotia? The Commission Limit

Being an executor is real work, and many people wonder whether they can be paid for it. Beneficiaries ask the opposite question: how much of the estate could go to the executor instead of to them? Nova Scotia law answers both with a ceiling and a process, not a fixed fee.

This article explains what the commission is, how the five percent limit works, how the court decides the final amount, and what records help. Every estate is different, so a lawyer can confirm how these rules apply to yours.

This article covers the law of Nova Scotia.

What the commission is and what the cap means

When an estate is settled, the personal representative (the executor, in most estates) may be allowed a commission beyond their actual and necessary expenses. The Probate Act sets a limit: the commission cannot exceed five percent of the amount received, and the court sets it.

Five percent is a ceiling, not a rate you can simply charge. No percentage is automatic, and the court decides the final amount when the estate closes. The commission also covers all of the personal representative's services in completing the administration, so it is not a separate charge for each task.

Expenses are a different category. Actual and necessary expenses are allowed in addition to the commission.

"Amount received" is not the same as "gross estate value"

The Probate Act describes the cap in terms of the amount received. People sometimes describe it more loosely as a percentage of the gross value of the estate. Those are not necessarily the same thing, and the difference can change the numbers.

For example, the value used for probate tax follows its own rules: personal property at gross value and land net of registered mortgages and encumbrances. That valuation method is for tax, security and inventory, so do not assume it is the base for commission. Which figure applies to a particular estate is worth confirming with a lawyer before anyone relies on a number.

How the court decides the amount

In setting a commission, the court may consider several things:

• The size of the estate.
• The care and responsibility involved.
• The time spent.
• The skill shown.
• The success of the administration.

These factors are why two estates of the same size can lead to different commissions. A simple estate with one bank account is not the same as one with a business, a dispute or several properties.

The usual setting for this decision is the passing of accounts. The court's powers there include requiring amendments, setting the commission and appointing an accountant. A personal representative must apply to pass accounts within 18 months of the grant unless the court orders a longer period, when seeking a discharge, or when the court orders it.

Fees in the will and private fee agreements

If you are named in a will that sets a fee, think carefully before accepting the office, because that fee generally takes the place of the statutory commission. If a side arrangement was made with the person who died, make sure it is written into the will, since otherwise it does not bind the court or beneficiaries. Time limits apply to renouncing a will fee, so get advice early.

Why records matter

The personal representative must keep accurate records of all property and debts of the estate. Those records are also the best support for a commission claim, because the court looks at time, care, responsibility and the success of the administration.

When accounts are passed, the application is made on Form 39 (with a hearing) or Form 40 (without one), and the personal representative files an affidavit on Form 43 not less than 10 days before the passing date. A beneficiary who objects files a Notice of Objection (Form 42) and serves it at least 10 days before the passing date; without one, they are treated as consenting.

Accounting can sometimes be dispensed with, using Form 37, Form 38 and a release (Form 36) from beneficiaries. Beneficiaries should understand what they are signing before agreeing to that.

What to do next

• Check whether the will sets a fee, and whether you want to keep or renounce it.
• Keep a running log of tasks and time, plus receipts for expenses.
• Keep estate money and records organised from the first day.
• Do not pay yourself a commission before the court has set it.
• As a beneficiary, ask for accounts and note the objection deadlines.
• Speak with a lawyer if you are unsure how the commission should be calculated.

Frequently asked questions