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. var CurrentYear = new Date().getFullYear()
But even if executors are family members or beneficiaries (or both), he or she has a legal right to be paid. He expended considerable fees for accounting services for an estate of little or moderate complexity.". “People need to understand that [estate administration] is a huge amount of work,” Van Cauwenberghe says. Last updated: Friday, November 11, 2011
You may also claim a management fee. If the estate requires the executor to draw upon special skills or abilities, he gets more compensation. For more information, see "Employment by a trustee" in Chapter 1 of the T4001, Employers' Guide - Payroll Deductions and Remittances. Whether it is in statute or not, Canadian jurisdictions tend to defer to a 5% cap as a benchmark for executor fees. An executor is entitled to an executor's fee of 2% to 5% of the value of your estate. As the executor, you must report these fees on a T4 slip. 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.". In some estates, indeed perhaps in many, no fairer method can be employed in estimating compensation than by the application of percentages. So how do you place a dollar figure on the work involved, and upon which criteria should you base compensation? Asked by Wiki User. And if they [specify] amounts, they’re often not applicable by the time people pass away.”. 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.". It is quite possible for a relatively small estate to make necessary work proportionately greater than in some of the larger estates. It is not intended to be legal advice and you would be foolhardy to rely on it in respect to any specific situation you or an acquaintance may be facing. Permalink. The latter approach is generally preferred by trust companies, as it promotes transparency and typically eliminates the need to seek court approval. Disbursements with complicated instructions, or assets which if disposed expose the executor to personal liability, entitle him to more. Whether you are currently settling an estate or planning to appoint an executor* in the future, the following checklist can help prepare you for the key tasks involved. 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. A management fee is not always appropriate or allowed. ... Hi. By: Lloyd Duhaime
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. Executor compensation is considered taxable income. ". James Dolan is a Vancouver-based financial writer. So, the testator could assign the executor a gift from the estate (generally not taxable) instead. We have a Saskatchewan solution made for you. How do you place a dollar figure on the work involved? 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. The purpose of the Agreement is to ensure that the person you name in your Will to act as executor of your estate is fairly compensated by setting out the amount of the fee and how it will be paid. [Assets] go up in value. One of the disadvantages of probate is the cost of court fees required as part of an application. Financial Planning -> Wills & Estates -> Probate fees -> Saskatchewan Saskatchewan Probate Fees. See Answer. [That] can potentially hold up distribution.” Whoever it goes to, compensation is typically paid before distributions are made to heirs. How two advisors are riding out the Covid-19 storm - and gaining clients. 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. As an estate representative, you may have to cover some of the expenses of settling the estate until you can be paid back from the estate. Co-Executors Share Fees Sometimes probate is obtained to protect the executor. You need, then, not read the rest of this article unless you are a fan of deep, intriguing, life-changing prose. The Court wrote: "There is no tariff under the rules for the compensation to be paid to a personal representative. But even in those jurisdictions where 5% is not the statutory cap on executor fees, the courts often defer to 5% as the benchmark. Pandemic complicates discretionary trust payouts, Top tips from portfolio managers in 2020: Part 2, Canadians share their top financial goal for 2021, First-time homebuyers see new opportunities, challenges in pandemic economy. If you have questions about any of your duties or want more information about how you can get help from an RBC Royal Trust professional, please call 1-855-833-6511. “The executor is entitled to be paid,” Wilson points out. 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. 5 percent. Maintain or initiate legal actions on … The flat fee is $200, plus an additional fee of $25 for issuing a Certificate of No Infants when one is requested. 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. But exercise caution if the will leaves a legacy to the executor—beneficiaries could … How ETFs continue to transform the financial industry 30 years after launch, The latest appointment : Picton Mahoney Asset Management Welcomes Industry Leader Michael Lynds as Managing Director, Head of Retail Business, Issues and strategies for Canadians thinking about transferring their U.S.-based retirement plans, Trustees must balance the interests of income and capital beneficiaries amid economic uncertainty, Help your client avoid these estate planning pitfalls, From tax planning to economic forecasts, industry experts provided insights, Prices for entry-level condos in downtown areas are attractive, From government benefits to 401(k)s, our experts covered the big topics. 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. Does my home insurance cover liabilities occurring when acting as an executor? What are Executor’s fees? 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. Published: Friday, June 18, 2010
Unless otherwise noted, this article was written by Lloyd Duhaime, Barrister, Solicitor, Attorney and Lawyer (and Notary Public!). Notice that some defer to a stated percentage of the value of the estate, but most do not: 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. How can shareholder engagement drive company behaviour? “You’re guessing at what might have to be done,” he says. Share this article and your comments with peers on social media, When your client wants to change beneficiaries, Restraints to testamentary freedom when drafting a will, Effective beneficiary designations when converting RRSPs to RRIFs. [Assets] go up in value. “You’re guessing at what might have to be done,” he says. That can lead to problems if one person did more work. to collect the executor fee that is typically allowed; he or she can also be required to write a personal cheque to reimburse the beneficiaries or creditors for the mistake, and to pay a litigation lawyer to settle the matter. Case numbers are updated daily. Wiki User Answered . "90. ", Duhaime's Legal Citations & Abbreviations, If an executor cannot do the job, or if there is no, Executors and administrators are referred to as, Note 1: CCH Canadian Limited, Canadian Estate Administration Guide, 2009, ¶29,683, "In Ontario, the accepted rate of compensation is often quoted as 5% of the value of the estate. Conversely, if the estate is so simple that anyone could administer it, he gets less. ... allows us to accomplish work more quickly than an inexperienced executor. A somewhat simplified view of the overall estate settlement process consists of the following overlapping steps: Where a fee earned by an executor in respect of the administration of an estate is considered to be income from an office, the amount will be included in the executor's income under paragraph 6(1)(c) as a "director's or other fee". First, a quick primer on essential terms, without which the law on executor fees can be initially confusing: 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. Canadian Probate Fee Calculator Probate fees (or estate administration tax) is calculated on the total value, in Canadian dollars, of a deceased person's estate. An executor is not entitled to pay himself or herself in advance. In some estates, indeed perhaps in many, no fairer method can be employed in estimating compensation than by the application of percentages. 2012-07-24 02:57:49. COVID-19 case updates (including the map and dashboard) will not be available on December 25, 26, 28 and January 1. Therefore, this is merely legal information designed to educate the reader. While executors are entitled to be paid in all provinces, most only require that compensation be “fair and reasonable.” Others outline a range of 3% to 5% of an estate’s assets, based on five factors courts have historically considered (see “Five factors,” below). Barry Wilson, partner with Warren Sinclair LLP in Red Deer, Alta., says some testators stipulate exact amounts in their wills. Finally, a will writer may choose to indicate the executor will be compensated in accordance with state law, or, if they remain silent on the issue, state law prevails. If the estate lacks funds, executor compensation ranks ahead of those distributions. 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. For example, in an estate having assets of $200,000.00, the probate fees would be $1,400.00. If there are multiple executors, compensation doesn’t increase; it must be divided. With respect to real estate, fees are only paid on the equity in the property - the market value of the property less the balance on the mortgage or the agreement for sale. These services are often performed for no or little compensation by personal representatives who are family members or beneficiaries of an estate. In others, while percentages may be of assistance, it would be manifestly unreasonable to apply them slavishly and to do so would, "It can readily be recognized that, depending upon the idiosyncrasies of the particular estate, the care, pains and, "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. In others, while percentages may be of assistance, it would be manifestly unreasonable to apply them slavishly and to do so would
“[Executors] have to work it out themselves. There is an Application for Probate package available from the Courts of Saskatchewan. Sometimes, personal executors won’t. A family member or friend who acts as executor has the legal right to ask for and receive compensation for administration of the estate, although many choose not to charge a fee. But if not, as is often the case, the executors and beneficiaries need to look at their statute books for guidance. 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? Nothing in section 88 ... applies in any case in which the allowance is set by the instrument creating the trust.". Usually, the larger the estate, the more compensation the executor gets. You calculate this fee as 2/5 of 1% of the average value of the gross assets you administer. Unfortunately, there are some bad law cases out there which tend to encourage pre-taking. 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....". In estate law, this is often referred to pre-taking. However, the presumption has been taken very lightly by the courts and is quickly displaced. This can be done via a clause in the will, or by a separate compensation agreement that is “incorporated by reference” into the will. What is the estate executor fee in Saskatchewan? For example, if an estate has a value of $60,000, the Court costs are $420 (60 x $7). If the Executor is also a beneficiary under the will, the Executor may take his/her fee as an increase in the inheritance due rather than as a ‘fee’. Fundamentally, it is the executor's responsibility to manage and wind down the deceased person's estate, resolving any debts, distributing assets to heirs, and filing legal paperwork. M-062518-2014 Page 5 Q. “And somebody deserves to be compensated for doing that.”, Read: When your client wants to change beneficiaries. Some people are surprised when an executor brings up compensation, says Tom Junkin, senior vice-president, Personal Trust Services, at Fiduciary Trust Canada in Calgary. Another interesting twist: if the will gifts anything to the named executor, the law presumes that the gift is in lieu of compensation. In addition, the law changes rapidly and sometimes with little notice so from time to time, an article may not be up to date. 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