Wills and Estates Planning
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In British Columbia, an executor may be paid a fair and reasonable fee of up to 5% of the gross value of the estate, plus a possible annual care and management fee of up to 0.4%, under section 88 of the Trustee Act. These are maximums, not automatic amounts. The will can set a different fee, and if beneficiaries do not agree, the Supreme Court of British Columbia decides.
Key points
Acting as an executor can take many months of work: gathering assets, dealing with banks and the Canada Revenue Agency, selling property, paying debts and distributing the estate. It is natural to ask whether that work is paid, and for beneficiaries to ask how much is fair. This guide explains how executor fees work in BC, the court decisions that apply the rules, and how to avoid disputes.
Table of contents
An executor is the person named in a will to administer the estate. (Where there is no will, the court appoints an administrator; the same remuneration rules apply.) Executor fees, also called executor remuneration or compensation, are paid from the estate for the executor’s “care, pains and trouble” and time spent. If you are new to the role, our article on the executor’s role in Canadian wills explains the main duties.
Executor fees are different from probate fees, which are paid to the province when applying for a grant. For those, see our guide to BC probate fees.
Section 88(1) of the Trustee Act, RSBC 1996, c 464 allows the Supreme Court (or a registrar, if directed by the court) to award an executor, administrator or trustee a fair and reasonable allowance not exceeding 5% of the gross aggregate value, including capital and income, of all the assets of the estate.
Three features of the rule are worth noting:
BC courts follow a long-standing five-part test. In Mikaloff (Re), 2018 BCSC 756 at para 15, the court listed the factors as:
The same decision stressed that maximum remuneration “is not awarded as a matter of routine” and that the executor is entitled to an amount that is appropriate, fair and reasonable in the circumstances (para 42). In Borkovic v Borkovich, 2023 BCSC 2050, the registrar repeated the five factors (para 74) and reduced a claimed care and management fee after finding that the care and responsibility involved were minimal (para 86).
In practice, a simple estate with one bank account and a home sold quickly will often justify a lower percentage than a complex estate with a business, rental properties, foreign assets or litigation.
If an estate has a gross aggregate value of $800,000 (including income earned during administration), the most the court could allow under section 88(1) would be 5% of that figure, or $40,000. Whether the executor actually receives that amount, or something lower, depends on the five factors above and on any terms in the will. This example only illustrates the arithmetic of the ceiling; it is not an estimate of what any executor will receive.
Section 88(3) of the Trustee Act allows a person entitled to remuneration to apply annually to the Supreme Court for a care and management fee of up to 0.4% of the average market value of the assets. The court “may” allow it. This fee is most relevant where assets are held and invested for a period, such as a trust for a minor beneficiary, rather than in a short administration.
Section 90 of the Trustee Act provides that sections 88 and 89 do not apply where the will or other trust instrument sets the allowance. In Morrison Estate (Re), 2009 BCSC 217 at para 30, the court confirmed that remuneration can be fixed in a will and that, provided the executor is not one of the attesting witnesses, the will’s terms take precedence over section 88.
Wording matters. In Zaradic Estate (Re), 2021 BCSC 2478 at para 34, a clause saying the executors “may claim” a percentage was interpreted as discretionary, so the amount was still set using the usual section 88 factors. A will-maker who wants a specific fee, or no fee, should say so clearly. Our wills services page explains how Pax Law Corporation helps with drafting wills in British Columbia.
Out-of-pocket expenses are not part of the percentage fee. Section 88(2) says remuneration is allowed in addition to expenses actually incurred, and section 95 of the Trustee Act allows a trustee to reimburse themselves for expenses incurred in carrying out the trust. Typical examples include court filing fees, appraisal costs, property insurance and travel. Executors should keep receipts and a clear ledger.
Many executors are also family members who inherit under the will. Being a beneficiary does not, by itself, prevent an executor from claiming a fee. In In the Matter of the Estate of Abraham Erlichman, Deceased, 2003 BCSC 20 at para 5, the court described a rebuttable presumption that a will-maker intended an executor who receives a specific legacy to take no remuneration, but noted that the presumption does not arise where the executor shares in the residue of the estate. The court described the authority on this point as limited, so the wording of each will and the surrounding circumstances matter.
Where two or more executors act together, the 5% limit in section 88 is expressed as a percentage of the estate, not of each executor’s work. The cautious view is that there is one estate-level ceiling, and the fee is allocated according to the will and the work each executor actually did. In Watson v Strong, 2016 BCSC 1897 (paras 66–67), the registrar assessed the co-executors separately: one received interim remuneration of 4.5% of the gross aggregate value of the estate, and the other received no remuneration. The work and conduct of each executor can therefore affect the result.
An executor should not simply pay themselves a disputed fee. There are two usual routes:
Separately, section 99 of the Trustee Act generally requires an executor to pass the first accounts within two years of the grant unless all beneficiaries approve the accounts in writing or the court otherwise directs, and a beneficiary may require annual accounts by notice. Under section 157(3) of the Wills, Estates and Succession Act, an executor may apply for discharge without notice in some cases, including where the accounts have been passed or all beneficiaries have consented to them.
If beneficiaries and executors cannot agree, the dispute may become part of broader estate litigation. Our page on estate litigation in BC and our guide to contesting a will in British Columbia provide more background.
Executor remuneration is generally taxable in the executor’s hands. The Income Tax Act includes remuneration and fees from an office in income (see sections 5(1) and 6(1)(c)), and a professional executor may instead report the fee as business income. The fee is paid by the estate, and the exact reporting can depend on the facts, so executors should obtain advice from a tax professional before claiming a fee. Some executors who are also the main beneficiaries choose to waive the fee for this reason.
If you are an executor looking for guidance, see our advisory support for executors, our guide to estate distribution in BC, and our article on the Public Guardian and Trustee, which can become involved where a beneficiary is a minor or an adult who needs support.
Executor fees (also called executor remuneration or compensation) are the payment an executor may receive from the estate for the time, care and responsibility involved in administering it. In British Columbia, the main rule is section 88 of the Trustee Act.
Under section 88(1) of the Trustee Act, the court may allow a fair and reasonable allowance of up to 5% of the gross aggregate value of the estate, including capital and income. That figure is a ceiling, not an automatic entitlement.
No. BC courts have said that maximum remuneration is not awarded as a matter of routine. The amount must be fair and reasonable in the circumstances: Mikaloff (Re), 2018 BCSC 756 at para 42.
Courts usually consider the size of the estate, the care and responsibility involved, the time spent, the skill and ability shown, and the success achieved: Mikaloff (Re), 2018 BCSC 756 at para 15; Borkovic v Borkovich, 2023 BCSC 2050 at para 74.
Section 88(3) of the Trustee Act allows a person entitled to remuneration to apply annually to the Supreme Court for a care and management fee of up to 0.4% of the average market value of the assets. It is most relevant where assets are held and managed over time, such as in an ongoing trust.
Yes. Section 90 of the Trustee Act says sections 88 and 89 do not apply where the will or other trust instrument sets the allowance. However, a clause that only says the executor “may claim” a fee may be treated as discretionary, leaving the amount to be set under section 88: Zaradic Estate (Re), 2021 BCSC 2478 at para 34.
No. Remuneration is allowed in addition to expenses actually incurred (Trustee Act, s 88(2)), and section 95 lets a trustee reimburse themselves for proper expenses of administering the trust. Keep receipts for every expense.
Generally yes. Being a residuary beneficiary does not, on its own, prevent an executor from claiming remuneration. Where an executor receives a specific gift, there may be a rebuttable presumption that the gift was meant to replace compensation: In the Matter of the Estate of Abraham Erlichman, Deceased, 2003 BCSC 20 at para 5.
The 5% limit in section 88 is measured against the value of the estate, not per executor, so the cautious view is that there is one estate-level ceiling. Courts look at each executor’s work and conduct; in Watson v Strong, 2016 BCSC 1897, one executor was awarded remuneration and the other was not.
Fees can be approved by the written consent of all beneficiaries or fixed by the court. Under Rule 25-13 of the Supreme Court Civil Rules, a personal representative or interested person may apply to pass the accounts and to fix and approve remuneration.
Generally, yes. Executor remuneration is usually treated as income of the executor under the Income Tax Act (for example, sections 5(1) and 6(1)(c) deal with remuneration and fees from an office). The exact treatment depends on the facts, so executors should obtain tax advice.
Yes. An executor may choose not to claim remuneration, for example where they are also a main beneficiary. They should still keep proper records and may still be reimbursed for proper expenses.
If you are an executor deciding whether to claim a fee, or a beneficiary with questions about a proposed fee or the estate accounts, Pax Law Corporation can review your situation and explain your options. Pax Law Corporation is a general practice with offices in North Vancouver and Toronto, and you can book a consultation with either office.
This article is for general information only and is not legal advice. The law can change and every case is different. Reading it does not create a lawyer–client relationship. For advice about your own situation, please book a consultation with a lawyer.
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