- The Probate Act allows a commission of no more than five percent of the amount received, and the court sets the final figure.
- The court looks at the estate's size, the care and responsibility involved, time spent, skill and the success of the administration.
- A fee written into the will generally replaces the statutory commission unless the executor renounces it in time.
Administering an estate can take months of real work: gathering assets, paying debts, dealing with the court and keeping records. Many executors wonder whether they can be paid for it, and many beneficiaries wonder whether the amount being claimed is fair.
In Nova Scotia there is no automatic percentage. There is a ceiling in the Probate Act, and the Probate Court decides what is appropriate in each estate. This article explains the basics so you know what to expect.
This article covers the law of Nova Scotia.
What the Probate Act says about commission
On settlement of the estate, the personal representative may be allowed, beyond actual and necessary expenses, a commission not exceeding five percent of the amount received. That five percent is a ceiling, not a standard rate. The court sets the amount, and the Probate Court sets the final figure when the estate closes.
The commission covers all of the personal representative's services in completing the administration. It is allowed beyond actual and necessary expenses, not in place of them. Because the wording refers to the amount received, how that amount is measured can matter, and it is worth confirming with a lawyer or accountant how it applies to your estate.
How the court decides what is fair
When setting a commission, the court may consider the size of the estate, the care and responsibility involved, the time spent, the skill shown and the success of the administration. No percentage is guaranteed, and a simple estate with little work may justify less than a complex one.
- Size of the estate: a larger estate may carry more responsibility.
- Care and responsibility: for example, dealing with land, creditors or disputes.
- Time spent: records of what you did and when help here.
- Skill: whether specialized knowledge was needed.
- Success: whether the estate was administered well.
The personal representative must keep accurate records of all property and debts of the estate. Good records also support any request for commission.
When the will or an agreement sets the fee
If the will sets out a fee for the executor, that fee generally replaces the statutory commission unless the executor renounces it within the time limit. How long you have to renounce depends on your situation, so it is worth confirming the deadline with a lawyer early if this applies to you.
A side agreement is treated differently. A fee agreement between the person who made the will and the proposed personal representative binds neither the court nor the beneficiaries unless it is written into the will. An informal understanding, even a sincere one, may not hold up.
When the commission gets reviewed
Commission is usually dealt with when the accounts are passed. The personal representative must apply to pass accounts within 18 months of the grant, unless the court orders an extended period. An application to pass accounts is also required when the personal representative seeks a discharge, and whenever the court orders it. The court's powers on a passing include requiring amendments, setting commission and appointing an accountant.
A beneficiary who objects to the accounts 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. If everyone is satisfied, accounting may be dispensed with using Form 37 and Form 38, together with a release (Form 36) from the beneficiaries.
| Situation | What generally applies |
|---|---|
| No fee in the will | Court may allow commission up to five percent of the amount received |
| Fee set out in the will | Generally replaces the statutory commission unless renounced in time |
| Private fee agreement not in the will | Binds neither the court nor beneficiaries |
What to do next
- Executors: keep a clear log of tasks, dates and time spent, along with receipts.
- Executors: before paying yourself anything, check the will for a fee clause, and remember that the court sets any commission on settlement of the estate.
- Beneficiaries: ask for an accounting and read it before agreeing to anything.
- Check the will for any fee clause before assuming the statutory commission applies.
- Speak with a lawyer if you disagree about the amount or if a fee clause or agreement is involved.
Every estate is different, so a lawyer can look at the will and the accounts and explain how the rules fit your situation.
Frequently asked questions
Is five percent the standard executor fee in Nova Scotia?
No. Five percent of the amount received is the most the Probate Act allows as a commission, not a set rate. The court decides the amount and may consider factors such as the work, responsibility and skill involved.
Can an executor pay themselves from the estate?
Unless the will sets a fee, a commission is allowed only as the court sets it on settlement of the estate. A fee set out in the will generally replaces the statutory commission unless the executor renounces it within the time limit. Taking money without agreement or approval can lead to objections when the accounts are reviewed, so get advice first.
What if the will names a specific fee for the executor?
A fee set out in the will generally replaces the statutory commission unless the executor renounces it within the time limit. A fee agreement outside the will does not bind the court or the beneficiaries.
What can a beneficiary do if the compensation seems too high?
A beneficiary can file a Notice of Objection (Form 42) and serve it at least 10 days before the passing date. The court can then require amendments and set the commission.
Sources
- Probate Court Practice, Procedure and Forms Regulations — novascotia.ca
- Probate Act, s. 76 (as reported via Probate Act, SNS 2000, c 31 and Department of Justice guidance) — novascotia.ca
- Probate Act, SNS 2000, c 31, s. 77 — nslegislature.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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