Being an estate trustee has many serious responsibilities. Some are almost inconsequential and others are quite monumental. Many times I am asked by estate trustees if they are entitled to be paid. The answer is “yes” but they are only entitled to receive a reasonable amount for their administration.
An Ontario court would look at:
(A) The magnitude of the trust
(B) The care responsibility and risks assumed by the estate trustees
(C) Time spent in out the responsibilities
(D) Skill and ability required and displayed and
(E) Results obtained and degree of success associated with any efforts of the estate trustees
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This amount has followed an unofficial formula for some time: the estate trustee can charge 2.5% on each of the capital receipts, capital disbursements, annual revenue receipts and annual revenue disbursements. There is also a care and management fee of 2/5 of 1% of the average value of the assets under management where the estate is not able to be distributed immediately.
It is important to remember that compensation is taxable as income in the hands of the estate trustee. Depending on, among other things, the amount of compensation, it is possible that HST must be charged to the estate and paid to the Canada Revenue Agency.
Where the estate trustee is the beneficiary no compensation would be claimed but where a compensation claim is made by two or more estate trustees a decision is necessary as to how to allocate the compensation fairly, generally determined by time and effort. This is significant in determining the amount of tax liability for each estate trustee.
Where compensation is claimed is important to have the consent of all of the beneficiaries or the approval of the court by way of a “passing of accounts”. This is a formal procedure to be referred to in another article. Pre-taking compensation from the estate before the estate is wound up can also create problems for the estate trustee unless there is some form of permission given in the testamentary document (Will).
