Ashley Thornton, articling student and Maddi Thomas, associate of Gowling WLG (Canada) LLP

Choosing your executor (also called an estate trustee in Ontario) is one of the most consequential decisions you will make in the estate planning process. It’s not – or shouldn’t be – about rank in the family, or feelings. Rather, it is about appointing a person who is competent, neutral, trustworthy, and willing to carry out your wishes with care, diligence, and good faith. Your executor must put beneficiaries’ interests ahead of their own, avoid conflicts, account transparently, and administer the estate prudently. This can be tricky, particularly when the executor wears multiple hats, such as executor, beneficiary, and/or director of companies associated with an estate. Picking the wrong executor can be costly to your estate, both in time and money.

Location of the Executor

In Ontario, it is generally preferable to choose an executor who resides in the province (or at least in Canada). Not only will a local executor will have an easier time dealing with your personalty, selling your real estate, and potentially accessing your bank accounts, but further, an out‑of‑province or non‑resident executor may be required to post an estate administration bond as a condition of probate pursuant to s. 35 of the Estates Act, RSO 1990, c. E.21.

 

 

An estate bond is a court‑approved guarantee, typically issued by a surety insurer or qualified personal sureties, and is intended to protect beneficiaries and creditors against potential losses caused by improper administration. The bond must be double the value of the estate, as set out in the probate application.[1] Practically, a bond adds cost, delay, and complexity. Choosing a local executor often avoids this issue.

Many wills include a “No Bond Required” clause, though there is no guarantee the court will abide by this clause.

Timeline and Commitment:

Administering even relatively simple or small estates can take months or years, depending on the testator’s wishes, while complex estates may take much longer. Consider the logistics of this timeline and commitment when choosing your executor: if the executor lives far from Ontario, travel may be required for property access, meetings, or court filings. Think realistically about your potential executor’s life, caregiving responsibilities, and professional demands, and whether they can meet this commitment.

The Potential Liability:

Executors carry personal exposure for mishandling the estate. Delays in paying taxes or creditors, failing to preserve assets, selling below fair market value, poor record‑keeping, or acting with bias can trigger claims (by the beneficiaries or Office of the Public Guardian and Trustee) against the executor.[2] Your proposed executor should appreciate the seriousness of the role, understand they are a fiduciary, be willing to seek professional advice when needed (lawyer, accountant, appraiser, realtor), and commit to the timely administration of the estate.

Choosing Two or More Executors:

Co‑executors can be helpful in complex estates, however, appointing more than one executor may have unique challenges of its own. Banks often require signatures from both executors, which can be challenging if the executors have limited mobility, are in different locations, or do not get on. Your will should explicitly state how decisions will be made (unanimously or majority rules), and whether one executor is permitted to make decisions/execute documents in the absence of the other. Clear written decision‑making rules in your will can save time and reduce conflict.

Choosing an Alternate Executor:

In the event that the executor you have named predeceases you or is unwilling to act, it is imperative that you have named an alternate executor in your will.

Revisit your selected executor (and alternate executor) periodically to keep them current and practical, especially in light of major life changes (i.e.: marriage, divorce, births, deaths, relocation out of province, etc.).

Family Members:

Spouses and children are the most commonly appointed executors, though this is not always the right choice. The role of the executor is not always easy, and can be overwhelming for some people to deal with. Consider, do you think your spouse or children will be able to manage your affairs, particularly while grieving? Do your children all get along? Is it wise to have all of your children act as executors, or is one child the obvious choice? Is your family blended, and if so, do you think your current spouse will treat your children from another marriage fairly? Could your spouse or children adequately handle your business interests?

Family members should not be appointed based on feelings or concerns that one child will be “left out”. Sibling rivalries or difficult relationship dynamics can lead to long lasting relationship damage between your executors – particularly when the parent is no longer around to mediate. This can be very costly and extend the estate administration process. In these cases, a corporate executor or a trusted professional advisor may be the wiser choice.

Have a conversation with your family members and determine whether they feel they are up to this responsibility. Emphasize that your choice is not based on love, but on who you feel will be the best person or persons for the job.

Compensation:

Trustees are not required to take compensation, but they are entitled to it. The Trustee Act sets the guideline as follows, which works out to about 5% of the estate:

• 2.5% of all receipts, plus 2.5% of all disbursements (i.e., about 5% on the flow of funds), and
• an annual “care and management” fee of about 0.4% (two‑fifths of 1%) of the average annual value of assets under administration.

Note that the foregoing is not a legislated calculation and the ultimate amount may be subject to negotiation, alteration and/or judicial approval.

It may not make mathematical sense for beneficiary, such as a spouse, to take compensation. Consider, however, if one child is appointed executor, but all of your children are beneficiaries. Should the executor be entitled to compensation (or an additional legacy) in this case? Lawyers should always confirm their clients’ intentions with respect to this point.

The bottom line: choose your executor with your head, not your heart. Pick the person (or team) that is most likely to preserve your estate’s value, treat beneficiaries fairly, meet deadlines, and keep meticulous records. A well-thought-out choice now concerning your executor is the best way to ensure your wishes are honoured, and to save your loved ones the stress and financial cost of litigation later on.

[1] Estates Act, RSO 1990, c. E.21, s. 37.

[2] Walling v Walling, 2012 ONSC 6580; Queripel v Shaddock, 2023 ONSC 3114.