First, a quick primer on essential terms, without which the law on executor fees can be initially confusing:

  • An executor is the person named in a will to administer a decedent's estate.
  • If an executor cannot do the job, or if there is no will, the court appoints someone to manage the estate: that person is called an administrator.
  • Executors and administrators are referred to as personal representatives.
  • All personal representatives are trustees which is why the issue of their compensation is usually parked within a statute called trustee act.

In common law, the executor or administrator of an estate had no right to fees, as this placed him in a financial conflict of interest with the estate.

In Re Robertson, Justice Gale of the Ontario High Court of Justice wrote:

"[T]he Court had no power to allow compensation to an executor unless there was an express contract or other stipulation for remuneration, and that was still the law of England today. Unless, therefore, an executor or trustee could bring himself within the scope of (the estate administration statute), or could show some agreement, he could not recover compensation."

message in a bottle 1If the will sets out a lump sum or formula for compensation, that is the applicable fee; law unique but binding between all the parties to the estate. You need, then, not read the rest of this article unless you are a fan of deep, intriguing, life-changing prose.

But if not, as is often the case, the executors and beneficiaries need to look at their statute books for guidance. Each jurisdiction differs as to how they provide for the payment to an executor of a fee for their care and management of an estate. British Columbia does it through a Trustee Act, §88 and 90 which, as of July 2010, read as follows:

"88(1) A trustee under a deed, settlement or will, an executor or administrator, a guardian appointed by any court, a testamentary guardian, or any other trustee, however the trust is created, is entitled to, and it is lawful for the Supreme Court, or a registrar of that court if so directed by the court, to allow him or her a fair and reasonable allowance, not exceeding 5% on the gross aggregate value, including capital and income, of all the assets of the estate by way of remuneration for his or her care, pains and trouble and his or her time spent in and about the trusteeship, executorship, guardianship or administration of the estate and effects vested in him or her under any will or letters of administration, and in administering, disposing of and arranging and settling the same, and generally in arranging and settling the affairs of the estate as the court, or a registrar of the court if so directed by the court thinks proper....

"88(3) A person entitled to an allowance (as set out above) ... may apply annually to the Supreme Court for a care and management fee and the court may allow a fee not exceeding 0.4% of the average market value of the assets.

"90. Nothing in section 88 ... applies in any case in which the allowance is set by the instrument creating the trust."

Five per cent (5%) is the maximum - the cap - in British Columbia, that a personal representative can charge as a fee.

But it is not struck in stone either. In Re Atkinson:

"It is said that in an estate of this nature it is wrong in principle to apply as a measure of the compensation an arbitrary percentage to the so-called probate value and that to do so is an error in principle. It is said further that increasingly in this Province a practice has developed in the Surrogate Courts of fixing executor's compensation by the application, arbitrarily as it were, of customary percentages to the probate value of the estate under consideration, and that the compensation here under consideration and as fixed by the learned Surrogate Judge is a glaring example of the fallacy of
this procedure.

"Whatever practice, if any, with regard to the application of arbitrary or customary percentages may have developed, it should be said at once with respect to this instant appeal, as well as with respect to the compensation of executors and trustees generally, that the guiding principle as set out in (trustee statute) itself must never be lost sight of and that any practice or method by which such compensation is to be determined must always be applied with that statutory provision strictly in mind....

"If these statutory provisions are properly borne in mind, then in many instances the proper compensation may well be reflected by the allowance of percentages, but the particular percentages applied, or any percentages, are not to be regarded as of paramount importance; they should be employed only as a rough guide to assist in the computation of what may be considered a fair and reasonable allowance; the words of the statute override everything else and that fair and reasonable allowance is for the actual care, pains and trouble, and time expended. In some estates, indeed perhaps in many, no fairer method can be employed in estimating compensation than by the application of percentages. In others, while percentages may be of assistance, it would be manifestly unreasonable to apply them slavishly and to do so would
violate the true principle upon which compensation is always to be estimated.

"It can readily be recognized that, depending upon the idiosyncrasies of the particular estate, the care, pains and
trouble and time expended may be disproportionate to the actual size of the estate. A small, complex estate may make
more demands upon the trustee's care and time and skill than a much larger estate of a simpler nature; conversely, even in
a large estate with many complex problems, assessment of the compensation by the adoption of what might be said to be
the usual percentages would result in a grossly excessive allowance."

While Atkinson has been extremely popular as a source of law in estate matters on the proper compensation of personal representatives, Toronto General Trusts is even more so. Justice Teetzel wrote, in Toronto:

"From the American and Canadian precedents, based upon statutory provision for compensation to trustees, the following circumstances appear proper to be taken into consideration in fixing the amount of compensation: (1) the magnitude of the trust; (2) the care and responsibility springing therefrom; (3) the time occupied in performing its duties; (4) the skill and ability displayed; (5) the success which has attended its administration."

Thus, the percentage set out in the relevant statute is the maximum 2, 3 or 5 %, and whether to apply that maximum, is a matter of assessing the job to-do and actually done in accordance with the principles set out in Toronto General Trusts.

And as the statute is the starting point as to both the percentage, if any, and as to the applicable criteria, if any, here are some of the relevant Canadian statutes on executor fees as of July 2010. Notice that some defer to a stated percentage of the value of the estate, but most do not:

  • Alberta Trustee Act, §44 (no percentage; "... fair and reasonable allowance for the trustee’s care, pains and trouble and the trustee’s time expended in and about the trust estate...");
  • Manitoba Trustee Act, §90 (similar to Alberta, see above);
  • New Brunswick Trustees Act, §38 (similar to Alberta, see above);
  • Newfoundland/Labrador Trustee Act, §52 ("... remuneration among trustees that may appear just, according to the labour bestowed or the responsibility incurred by them respectively ... the total remuneration shall not exceed 1/20 of the realized value of the assets...");
  • Nova Scotia Probate Act, §62 (5%);
  • Ontario Trustee Act, §61 (similar to Alberta, see above);
  • Prince Edward Island Probate Act , §11 ("... no personal representative shall make any profit out of any estate, Remuneration of but the court may allow him, on the gross amount received, a reasonable personal representative commission, not exceeding five per cent, over and above all necessary expenses..."); and
  • Saskatchewan Trustee Act, §52 ("... reasonable allowance for administration of an estate...").

But even in those jurisdictions where 5% is not the statutory cap on executor fees, the courts often defer to 5% as the benchmark.1

 One court, the Supreme Court of Prince Edward Island in Re Cahill, even wisely suggested that 5% is the exception, not the rule:

".. it is not the usual practice of this court to award a full 5% fee...."

Most frequently, 5% is not an appropriate fee for a variety of reasons. Consider these words adopted by the Manitoba Court of Queen's Bench in Re Lloyd's Estate:

"Each estate must be considered individually, as the work involved in administration varies to a great extent and depends upon the matters to be considered. It is quite possible for a relatively small estate to make necessary work proportionately greater than in some of the larger estates.

"There has been a general tendency to fix the amount of compensation by allowing a percentage upon the total value of the estate, which system has been used and recognized and applied in many reported decisions.  It is, however, not a rule but a basis upon which a judge can take consideration when fixing compensation.  The usual percentage allowed would appear to be two per cent on the amount of the estate being administered, with variations for certain services rendered – such as five per cent for the collection of income and one per cent for collection and distribution of capital..."message in a bottle

In Nichols, that same court noted that "the court must examine compensation requests on a case by case basis". In the result, the executor's fees was reduced because of the executor's poor performance:

"The executor has provided absolutely no accounting for time spent in the course of administration of the estate.  He seeks compensation at the high end of a level that a professional administrator might seek to receive, without having demonstrated any of the skill and ability expected of a professional administrator.  He seeks a management fee for a period of ten and one-half years, which includes approximately three and one-half years after the estate should have been distributed.  He expended considerable fees for accounting services for an estate of little or moderate complexity."

Finally, in Re Money that professional executor, such as notaries, lawyers or accountants, can expect more sympathy from the court on a proposed 5% fee. The Court wrote:

"There is no tariff under the rules for the compensation to be paid to a personal representative.  The rules simply provide that, upon a passing of accounts, the court may fix the compensation or allowance to be made to the executor, administrator, or trustee under a will for the care, pains, trouble and time expended in and about the estate or trust. The court has virtually complete discretion in this respect, and arriving at an amount which is fair and reasonable for the personal representative is often extremely difficult...

"An executor’s duties do not require legal expertise, although it may help in many aspects.  Many of an executor’s tasks are administrative in nature and many involve pretty basic labour, such as cleaning out a home in preparation for selling it.  These services are often performed for no or little compensation by personal representatives who are family members or beneficiaries of an estate.  When a professional executor or administrator is retained, they can expect to be remunerated for such services on a professional basis....

"A rule of thumb for professional executors appears to be about 3 to 5% of the value of the estate...."

Another interesting twist: if the will gifts anything to the named executor, the law presumes that the gift is in lieu of compensation. However, the presumption has been taken very lightly by the courts and is quickly displaced. In Canada Permanent Trust, Justice Locke adopted these words:

"[T]here is a presumption that when a legacy or annuity is left to an executor, it is intended to be in lieu of the compensation to which he would otherwise be entitled. But this presumption, like the presumption that such a provision is conditional upon the executor's proving the will, applies only when the bequest is made to the executor in his capacity as executor and yields to very slight indications of a contrary intention. Thus the presumption does not arise when what is given to the executor is not a legacy or annuity but a share of the residue of the estate; or if the legacy to the executor is to be paid only on the expiration of a life interest. And when a legacy is left to an executor with a provision that if he predeceases the testator the legacy is to go to his executors this is sufficient to rebut the presumption."

Pre-Payment

An executor is not entitled to pay himself or herself in advance. In estate law, this is often referred to pre-taking.

Executors must wait to pass their accounts unless they get the consent of all beneficiaries. In Dunbar, Justice Rogers wrote of:

"... two pre-conditions for payment of remuneration to an executor.  Those pre-conditions were either passing of the executors’ accounts or, if the accounts had not been passed, obtaining the beneficiaries’ consent to the payment."

Unfortunately, there are some bad law cases out there which tend to encourage pre-taking. Consider these words from a master of a superior level court:

"While it is true that trustees ought not to take remuneration without the consent of all parties or, if consents cannot be obtained, before the accounts are passed, given the particular circumstances of this case I consider that the transgression, if any, is trivial."2

This judicial nonsense opens Pandora's box and suggests that executors can adopt a take now, seek approval later policy which is, bluntly put, a recipe for breach of trust.

Conclusions

Whether it is in statute or not, Canadian jurisdictions tend to defer to a 5% cap as a benchmark for executor fees. Unfortunately, many personal representatives put forward a 5% fee where they are not otherwise entitled to it. Conversely, many personal representatives seek less than their entitlement. At the end of the day, this is an area where legal advice may necessary, given the variables as set out by the courts and that executors often seek to eke out more than they are entitled to.

Also, be wary of executor who list as a disbursement the fees of a professional, such as a lawyer or an accountant, and yet seek the maximum fees for themselves: can you spell double-dipping? If a professional was retained to assists, that results in less work for the executor and the fee should reflect that.

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