Unless otherwise noted, this article was written by Lloyd Duhaime, Barrister, Solicitor, Attorney and Lawyer (and Notary Public!). In Ontario, the fee is 5% of the value of assets submitted for probate. 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 states agree that the executor of a will is entitled to reasonable compensation for her services. “It usually only becomes a problem if beneficiaries are feuding,” Wilson says. 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. How much? “The executor is entitled to be paid,” Wilson points out. M-062518-2014 Page 5 Q. 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. 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. Meet with all beneficiaries of estate. 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. In estate law, this is often referred to pre-taking. He expended considerable fees for accounting services for an estate of little or moderate complexity.". A family member will frequently waive this executor fee. If the estate requires the executor to draw upon special skills or abilities, he gets more compensation. Sometimes, personal executors won’t. Conversely, if the estate is so simple that anyone could administer it, he gets less. 5 percent. 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. 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. 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. 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. Make sure you keep records of any expenses you have to cover related to the death. If there are multiple executors, compensation doesn’t increase; it must be divided. However, “The percentages are guidelines,” Junkin says. So, the testator could assign the executor a gift from the estate (generally not taxable) instead. For example, in an estate having assets of $200,000.00, the probate fees would be $1,400.00. these are set by the Provincial Courts. 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. 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....". This can be done via a clause in the will, or by a separate compensation agreement that is “incorporated by reference” into the will. In others, while percentages may be of assistance, it would be manifestly unreasonable to apply them slavishly and to do so would
Sometimes probate is obtained to protect the executor. One of the disadvantages of probate is the cost of court fees required as part of an application. 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.". ©
Where a beneficiary is under the age of 18, the executor/administrator should obtain a signed release from the legal guardian. 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. 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.". As the executor, you must report these fees on a T4 slip. It is, however, not a rule but a basis upon which a judge can take consideration when fixing compensation. 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). 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.". Conversely, many personal representatives seek less than their entitlement. Executors who add value to an estate or make savvy asset management decisions are generally entitled to more compensation. 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. As an example, when a spouse passes, our fees are usually in the range of $1200 to $2500, although more complex estates may exceed this amount. 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. Executor fees can vary significantly, and are dependent on both state law and the decisions of the probate court. This package has the forms you need to apply for Letters Probate and shows how they should be filled out. “[Executors] have to work it out themselves. It is possible for the testator (person making the will) and executor to agree on the level of compensation (or no compensation) at the time the will is made. If you have a real situation, this information will serve as a good springboard to get legal advice from a lawyer. "90. Last updated: Friday, November 11, 2011
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. Does my home insurance cover liabilities occurring when acting as an executor? The trust company now wants the 4 children to sign a fee agreement for both executor fees and fees to administer the ongoing trust. Con: Probate Fees. How do you place a dollar figure on the work involved? 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. Executors may have to deal with irate family, friends and creditors of the deceased as well. You calculate this fee as 2/5 of 1% of the average value of the gross assets you administer. 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....". He suggests thinking about estates on a complexity curve, with such guidelines aimed at estates in the middle. Top Answer. Barry Wilson, partner with Warren Sinclair LLP in Red Deer, Alta., says some testators stipulate exact amounts in their wills. A somewhat simplified view of the overall estate settlement process consists of the following overlapping steps: 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.". Another interesting twist: if the will gifts anything to the named executor, the law presumes that the gift is in lieu of compensation. 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. ... allows us to accomplish work more quickly than an inexperienced executor. Unfortunately, there are some bad law cases out there which tend to encourage pre-taking. Won’t an open-ended approach lead to disputes? Saskatchewan probate fees are $7.00 on each $1,000.00 of estate assets. Nothing in section 88 ... applies in any case in which the allowance is set by the instrument creating the trust.". Executor compensation is considered taxable income. Maintain or initiate legal actions on … That can lead to problems if one person did more work. 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. The work of Executor or as Administrator can be daunting. An executor is not entitled to pay himself or herself in advance. For more information, see "Employment by a trustee" in Chapter 1 of the T4001, Employers' Guide - Payroll Deductions and Remittances. It can take a year or longer,” he says. The latter approach is generally preferred by trust companies, as it promotes transparency and typically eliminates the need to seek court approval. 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. In Saskatchewan, the probate fees are $7.00 for every $1,000.00 of probate-able assets. Courts generally accept that the executor is entitled about 5% of the estate’s value, plus an ongoing management fee of 2/5 of 1% of the average annual value of the estate assets during the settlement process. Things become more complex. Legal Fees - If you hire a lawyer to do the estate work, there will be fees payable to that lawyer. In Nichols, that same court noted that "the court must examine compensation requests on a case by case basis". 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. 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. Read: Clients think advisors are overpaid, Barry Wilson, partner with Warren Sinclair LLP in Red Deer, Alta., says some testators stipulate exact amounts in their wills. Case numbers are updated daily. Unless included in your business income, trustee, executor, or liquidator fees paid to you for acting as an executor is income from an office or employment. 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. a large estate with many complex problems, assessment of the compensation by the adoption of what might be said to be
In some estates, indeed perhaps in many, no fairer method can be employed in estimating compensation than by the application of percentages. Arrange for the executor of your estate to be paid for their services with this Executor Fee Agreement. “People write their wills, then live for another 10 to 15 years. How can shareholder engagement drive company behaviour? Wiki User Answered . To prepare for the possibility that the person you choose dies before you, you may wish to name an alternate executor. See Answer. But even in those jurisdictions where 5% is not the statutory cap on executor fees, the courts often defer to 5% as the benchmark. 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. There is an Application for Probate package available from the Courts of Saskatchewan. The Court wrote: "There is no tariff under the rules for the compensation to be paid to a personal representative. James Dolan is a Vancouver-based financial writer. 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. If the executor/administrator is not able to obtain releases from all beneficiaries, an application should be made to the court to have the accounts approved. 2012-07-24 02:57:49. If the estate lacks funds, executor compensation ranks ahead of those distributions. 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. A small, complex estate may make
I live in Alberta and am executor of an estate in Saskatchewan. “You’re guessing at what might have to be done,” he says. Within weeks of death. Financial Planning -> Wills & Estates -> Probate fees -> Saskatchewan Saskatchewan Probate Fees. 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. 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. A corporate guarantor will charge a fee for their work, which may be a concern as the fees will reduce the value of the estate to be distributed to beneficiaries. ... the following is a list of the more common duties for the executor or administrator: But even if executors are family members or beneficiaries (or both), he or she has a legal right to be paid. But he doesn’t advise that. document.write(CurrentYear)
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Executor fees are determined by the probate court based on statutory formula, 857.05 (2) Select the Province/Territory, then enter the total value of the estate. 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. 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. this procedure. But it is not struck in stone either. And if they [specify] amounts, they’re often not applicable by the time people pass away.”. Things become more complex. 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. 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, "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. "88(1) A trustee under a deed, settlement or, "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. When the executor’s compensation is not explicitly set out, the BC Trustee Act dictates how much the executor may charge. [That] can potentially hold up distribution.” Whoever it goes to, compensation is typically paid before distributions are made to heirs. It is quite possible for a relatively small estate to make necessary work proportionately greater than in some of the larger estates. But if not, as is often the case, the executors and beneficiaries need to look at their statute books for guidance. You must be able to show you actively managed estate assets. DUTIES OF AN EXECUTOR. The executor has no right to hold any portion of the distributable assets hostage in order to extort from a beneficiary an approval or release of the executor’s performance of duties as trustee, or the executor’s compensation or fee. Five per cent (5%) is the maximum - the cap - in British Columbia, that a personal representative can charge as a fee. the usual percentages would result in a grossly excessive allowance.". The grief felt as a result of losing a loved one is often overwhelming. 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". Every Province and Territory in Canada has its own formula for calculating the probate fees payable. Published: Friday, June 18, 2010
At that time, the executor would provide beneficiaries with a full account of costs incurred, assets managed, taxes paid and compensation owing, which beneficiaries must approve before receiving their portions. In Dunbar, Justice Rogers wrote of: "... two pre-conditions for payment of remuneration to an executor. Payment of executors It is legal for an estate executor to charge a fee for their services, given the extent of responsibility the executor accepts. Saskatchewan legal fees for an estate are prescribed by court rules and vary depending upon the value of the estate. "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. Executors must wait to pass their accounts unless they get the consent of all beneficiaries. These services are often performed for no or little compensation by personal representatives who are family members or beneficiaries of an estate. Under the Trustee Act, the maximum fee an executor can receive for their time and effort is 5% of the entire value of the estate (including capital and income). It is general practice to charge fees based on the value of the estate as well as earnings in the estate. violate the true principle upon which compensation is always to be estimated. 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’. We have a Saskatchewan solution made for you. A management fee is not always appropriate or allowed. Executor Fees (5%) Probate Fees Legal & Accounting (2%) Final Expenses Total Settlement Costs Net Estate Estate Shrinkage Net Estate Value Your Guide to Canadian Estate Taxes. 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. Unfortunately, many personal representatives put forward a 5% fee where they are not otherwise entitled to it. 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